Philosophical Foundation of Human Rights (Springer Textbooks in Law) 3030422615, 9783030422615

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Springer Textbooks in Law

Paul Tiedemann

Philosophical Foundation of Human Rights

Springer Textbooks in Law

Springer Textbooks in Law compiles high-quality educational content aimed at undergraduate and graduate students in all areas of law. All self-contained volumes are authored by accomplished academics and suitable for use in class as well as individual study. Many of them include chapter abstracts, definitions of technical terms, cases and self-assessment exercises, as well as recommended reading sections. This series is an invaluable resource for students and lecturers alike and spans the full range of topics in international and European law, including fundamentals of law and comparative law. Special attention is paid to current and emerging topics such as IT law, intellectual property, human rights as well as dispute resolution, mediation, arbitration – and many more. More information about this series at http://www.­springer.­com/series/15548

Paul Tiedemann

Philosophical Foundation of Human Rights

Paul Tiedemann Justus Liebig University Gießen, Germany

ISSN 2509-999X     ISSN 2510-0009 (electronic) Springer Textbooks in Law ISBN 978-3-030-42261-5    ISBN 978-3-030-42262-2 (eBook) https://doi.org/10.1007/978-3-030-42262-2 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

V

Preface This textbook presents a series of lectures, which I held between 2016 and 2020 during the winter semester at the Justus Liebig University in Giessen. It was aimed primarily at German law students who have to pass a course in a foreign language in preparation for the exam. The lecture was also always very well attended by Erasmus and other exchange students from all over the world. Most of the participants were already advanced in their law studies. Nevertheless, philosophical thinking was still completely new and foreign to them. The textbook is therefore particularly suitable for advanced law students, who are at the same time beginners in the field of philosophy. The style of an oral lecture was largely retained. The textbook presents the classical approaches of legal and social philosophy in order to show that they are unsuitable as a foundation of human rights. Only the conception of human dignity provides a sufficient basis if it is developed out of the Kantian distinction of price and dignity. Deriving human rights from the principle of human dignity makes it possible to identify the crucial characteristic of human rights, namely the protection of personhood. This makes it possible (1) to distinguish real moral human rights from spurious ones, (2) to analyze the protection scope of codified human rights according to the criteria of "core" and "yard," and (3) to have a starting point for the discovery of new, unwritten human rights. This philosophical basis makes possible a substantial criticism of the case-law on human rights and allows a substantial contribution to its improvement with regard to legal certainty, clarity, and cogency. The textbook is addressed in the first line to advanced law students who are interested in a deeper understanding of human rights. But, the textbook is also suitable for students of humanities who want to delve into human rights as well as for anyone in the political or social arena who refers to human rights or fights for the enforcement of human rights. It is not the aim of this textbook to deal with the entire stock of the international human rights law. Some relevant human rights are not mentioned (e.g., the ban of slavery or the right to use one’s own mother tongue or the specific rights of children). Those who study this textbook with sufficient attention, however, should be able to deal with all these real, or alleged, human rights from a solid foundation. The manuscript was completed before the coronavirus pandemic blocked almost all public life worldwide, including severe restrictions on freedoms in the area of some important human rights. It was therefore not possible to discuss the very specific human rights issues in this unique situation. However, readers of this book should be able to properly discuss and resolve these issues. I am full of gratefulness toward Arman Nikkhoo JD, Washington and Lee University School of Law, Lexington, VA, who corrected the text of the book in terms of grammar, orthography, and style. All remaining insufficiencies are on my own account. I also thank Sophie Reinisch for her great support. She drew some very

VI Preface

important graphics and she did so very carefully, reliably, and in short time. Finally I thank the Editor of Springer publishing house Anke Seyfried and Senior Editorial Assistant Manuela Schwietzer for the proven and professional support of the project. Paul Tiedemann

Giessen, Germany March 2020

VII

Contents 1

Introduction................................................................................................................................... 1

1.1 1.2 1.3 1.4

 The Aims of the Lecture.................................................................................................................. 4 The Concept of Human Rights...................................................................................................... 5 The Concept of Philosophy............................................................................................................ 14 The Reasons in Favor of a Philosophical Analysis and Foundation of Human Rights........................................................................................................ 18 Reading Recommendations.......................................................................................................... 20

2

Utilitarian and Aristotelian Approach........................................................................... 23

2.1 2.2 2.3

The Utilitarian Approach................................................................................................................ 26 The Aristotelian Approach............................................................................................................. 31 Requirements for an Adequate Theory of Foundation........................................................ 40 Reading Recommendations.......................................................................................................... 41

3

The Social Contract Approach............................................................................................ 43

3.1 3.2 3.3 3.4 3.5 3.6 3.7

The Theory of Social Contract....................................................................................................... 46 Thomas Hobbes................................................................................................................................. 47 John Locke........................................................................................................................................... 50 Jean-Jacques Rousseau................................................................................................................... 54 John Rawls........................................................................................................................................... 57 Why Social Contract Theories Cannot Serve as a Foundation for Human Rights.............................................................................................................................. 60 A New Approach After World War II............................................................................................ 62 Reading Recommendations.......................................................................................................... 63

4

The Human Dignity Approach............................................................................................ 65

4.1 4.2

 Human Dignity in International Law.......................................................................................... 68 The History of the Notion “Human Dignity”............................................................................ 71 Reading Recommendations.......................................................................................................... 77

5

The Human Dignity Principle I........................................................................................... 79

5.1 5.2 5.3 5.4 5.5

Dignity as a Value Judgment......................................................................................................... 83 Dignity as a Specific Category of Value..................................................................................... 87 Personhood as the Value Standard of Dignity........................................................................ 89 “Me-Dignity” and General Human Dignity............................................................................... 93 The Risk of Empirical Error............................................................................................................. 96 Reading Recommendations.......................................................................................................... 97

6

The Human Dignity Principle II.......................................................................................... 99

6.1 6.2 6.3

The Equiprimordiality Thesis......................................................................................................... 102 Dependence on Passive Recognition of Personhood........................................................... 103 Dependence on Active Recognition of Personhood............................................................. 108

VIII Contents

6.4 6.5 6.6

 Verification or Failing of Falsification?....................................................................................... 113 The Generality of the Equiprimordiality Thesis...................................................................... 114 Human Dignity in Cases of Doubt............................................................................................... 116 Reading Recommendations.......................................................................................................... 119

7

From Human Dignity to Human Rights........................................................................ 121

7.1 7.2 7.3 7.4

What Is a Right?.................................................................................................................................. 124 What Is Meant by Having a Right?............................................................................................... 131 Deriving Obligations from Values............................................................................................... 133 Deriving Rights from Values.......................................................................................................... 136 Reading Recommendations.......................................................................................................... 138

8

Human Rights Concerning the Protection of Physical and Mental Integrity................................................................................................................. 139

8.1 8.2 8.3 8.4

 The Multitude of Human Rights................................................................................................... 142 The Ban on Inhuman/Degrading/Cruel Treatment and Torture in International Law......................................................................................................................... 142 Philosophical Analysis..................................................................................................................... 144 Critique of the Case Law................................................................................................................. 151 Reading Recommendations.......................................................................................................... 154

9

Freedom of Movement and the Rights Under Detention................................. 157

9.1 9.2 9.3 9.4 9.5

The Habeas Corpus Rights............................................................................................................. 160 Humane Living Conditions While Under Detention.............................................................. 162 The Function of Article 10 ICCPR.................................................................................................. 164 Total Institutions................................................................................................................................ 165 The Fight to Freedom of Movement........................................................................................... 170 Reading Recommendations.......................................................................................................... 171

10

Human Rights Concerning the Protection of Intellectual Integrity................................................................................................................. 173

10.1 10.2 10.3 10.4 10.5

The Freedom of Information......................................................................................................... 177 Freedom of Expression.................................................................................................................... 179 Freedom from Censorship.............................................................................................................. 181 The Right to Free Assembly and the Right to Free Association......................................... 182 Restriction Clauses............................................................................................................................ 184 Reading Recommendations.......................................................................................................... 195

11

The Human Right to Privacy................................................................................................ 197

11.1 11.2 11.3 11.4 11.5

 The History of Privacy Rights........................................................................................................ 202 The Need for Privacy........................................................................................................................ 203 The Particular Rights to Privacy in Light of Goffman’s Theory........................................... 206 Protection of Social Ties (“Rootedness”)................................................................................... 209 Limiting Clauses of the Codified Human Rights to Privacy................................................. 210 Reading Recommendations.......................................................................................................... 214

IX Contents

12

The Right to Freedom of Conscience.............................................................................. 215

12.1 12.2 12.3

 The History of the Legal Concept “Conscience”...................................................................... 218 The Mechanism of Conscience..................................................................................................... 222 Is the Right to Freedom of Conscience a Human Right?...................................................... 226 Reading Recommendations.......................................................................................................... 230

13

The Right to Spiritual Freedom.......................................................................................... 231

13.1 13.2 13.3 13.4 13.5 13.6

 The Generality of Freedom of Religion...................................................................................... 233 The Freedom to Believe or Not Believe...................................................................................... 234 The Freedom to Practice Religion................................................................................................ 236 Religious Practices and the Maintenance of Personhood................................................... 238 The Criticism of Case Law............................................................................................................... 247 The Timeliness of Religious Freedom......................................................................................... 251 Reading Recommendations.......................................................................................................... 251

14

The Right to Life........................................................................................................................... 253

14.1 14.2 14.3 14.4 14.5 14.6 14.7

 The Codification of the Right to Life........................................................................................... 255 The Unique Character of the Right to Life................................................................................ 257 The Existence-as-Attribute Thesis............................................................................................... 258 The Basis Thesis.................................................................................................................................. 260 The Sanctity of Life Thesis.............................................................................................................. 262 The Mortal Fear Thesis..................................................................................................................... 264 The Function of the Right to Life.................................................................................................. 265 Reading Recommendations.......................................................................................................... 267

15

Social Human Rights................................................................................................................. 269

 The Distinction Between Liberal and Social Human Rights............................................... 274 The Codification of Social Human Rights.................................................................................. 275 The List of Codified Social Human Rights................................................................................. 277 The Goods of the Social Human Rights and its Relevance for Humane Living Conditions...................................................................................................... 278 15.5 Duties to Refrain From Doing Something and Duties to Do Something....................... 283 15.6 The Utilitarian Approach....................................................................................................... 284 15.7 The Deontological Approach................................................................................................ 285 15.8 Social “Human Rights” are Not Human Rights................................................................... 289 15.9 The Redundancy of Social Human Rights........................................................................... 291 Reading Recommendations.......................................................................................................... 292 15.1 15.2 15.3 15.4

16

Right to Asylum............................................................................................................................ 295

16.1 The Right to Asylum in International Law.......................................................................... 297 16.2 Is There a Moral Human Right to Global Free Movement?.............................................. 300 16.3 Is There a Moral Human Right to Asylum?.......................................................................... 303 16.4 Right to Asylum for Asylum Seekers Inside the State Borders....................................... 305 16.5 The Refoulement Ban in Positive Asylum Law................................................................... 307 16.6 Right to Asylum for Asylum Seekers Outside the State Borders.................................... 309 Reading Recommendations.......................................................................................................... 310

X Contents

17

Fake Human Rights.................................................................................................................... 313

17.1 17.2 17.3

The Right to Property...................................................................................................................... 315 Philosophical Conceptions of Property..................................................................................... 318 Collective Human Rights................................................................................................................ 324 Reading Recommendations.......................................................................................................... 328

18

The Principles of Liberty........................................................................................................ 329

18.1 18.2 18.3 18.4 18.5

Liberty in Positive Law..................................................................................................................... 331 The Content of the Principle of Liberty..................................................................................... 337 Rules and Principles......................................................................................................................... 338 The Philosophical Foundation of the Principle of Liberty................................................... 342 The Legal Instruments for Taking Care of Liberty.................................................................. 343 Reading Recommendations.......................................................................................................... 347

19

The Principles of Equality...................................................................................................... 349

19.1 19.2 19.3



 The General Appearance of Equality within Human Rights Codifications.................... 351 Is There a Human Right to Equality?........................................................................................... 353 Is There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex Etc.?................................................................................................................. 356 Is There a Human Right Against Discrimination on Reasons of Making Use of Human Rights?................................................................................................. 359 Reading Recommendations.......................................................................................................... 361

20

Rights in Conflict......................................................................................................................... 363

20.1 20.2 20.3 20.4 20.5 20.6 20.7

 Methods for Resolving Norm Conflicts...................................................................................... 366 Freedom of Action v. Freedom of Action.................................................................................. 368 Margin Human Right v. Freedom of Action.............................................................................. 369 Margin Human Right v. Margin Human Right......................................................................... 370 Freedom of Action v. Core Human Right................................................................................... 372 Margin Human Right v. Core Human Right.............................................................................. 374 Core Human Right v. Core Human Right................................................................................... 376 Reading Recommendations.......................................................................................................... 382

21

Do You Still Remember – The Answers.......................................................................... 385

21.1 21.2 21.3 21.4 21.5 21.6 21.7 21.8 21.9 21.10 21.11

Answers to Chapter 1....................................................................................................................... 387 Answers to Chapter 2....................................................................................................................... 387 Answers to Chapter 3....................................................................................................................... 388 Answers to Chapter 4....................................................................................................................... 388 Answers to Chapter 5....................................................................................................................... 389 Answers to Chapter 6....................................................................................................................... 389 Answers to Chapter 7....................................................................................................................... 390 Answers to Chapter 8....................................................................................................................... 390 Answers to Chapter 9....................................................................................................................... 391 Answers to Chapter 10.................................................................................................................... 391 Answers to Chapter 11.................................................................................................................... 392

19.4

XI Contents

21.12 21.13 21.14 21.15 21.16 21.17 21.18 21.19 21.20

Answers to Chapter 12.................................................................................................................... 393 Answers to Chapter 13.................................................................................................................... 393 Answers to Chapter 14.................................................................................................................... 394 Answers to Chapter 15.................................................................................................................... 394 Answers to Chapter 16.................................................................................................................... 395 Answers to Chapter 17.................................................................................................................... 395 Answers to Chapter 18.................................................................................................................... 396 Answers to Chapter 19.................................................................................................................... 396 Answers to Chapter 20.................................................................................................................... 397



Supplementary Information Index............................................................................................................................................. 401

Abbreviations and Sources of Codifications Afghanistan

Constitution of Afghanistan of 03/01/2004



7 https://web.­archive.­org/web/20101127090617/  

7 http://president.­gov.­af/sroot_eng.­aspx?id=68  

Banjul Charter

Banjul Charter on Human and Peoples’ Rights of 01/06/1981



7 https://au.­int/en/treaties/african-charter-human-and-peoples-rights

Bosnia and Hercegovina

Constitution of Bosnia and Hercegovina of 31/05/1994



7  http://www.­ccbh.­ba/osnovni-akti/ustav/?title=preambula



English: 7 http://www.­ohr.­int/?page_id=68220

 

 

BVerfG Bundesverfassungsgericht [Federal Constitutional Court of Germany] BVerwG Bundesverwaltungsgericht [Federal Administrative Court of Germany] CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10/12/1984

UNTS 1465, 85



7  https://treaties.­un.­org/Pages/showDetails.­aspx?objid=0800000280 03d679

CETS

Council of Europe Treaty Series No 194 (2003) and following



7 https://www.coe.int/en/web/conventions/full-list

CJEU

Court of Justice of the European Union

ECHR European Convention of Human Rights of 04/11/1950 and additional protocols

ETS No 5



7 https://www.­coe.­int/en/web/conventions/full-list  

ECLI  European Case Law Identifier  jcms/P_126035/en/

7 https://curia.­europa.­eu/jcms/  

EComHR

European Commission of Human Rights

ECtHR

European Court of Human Rights

ETS

European Treaty Series No 1 (1949) to No 193 (2003)



7 https://www.­coe.­int/en/web/conventions/full-list  

XIII Abbreviations and Sources of Codifications

EU Asylum Directive Directive 2011/95/EU of the European Parliament and of the Council of 13/12/2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJEU L 337/9 of 20/12/2011



7  h  ttps://eur-lex.­europa.­eu/legal-content/DE/ALL/?uri=cel ex:32011L0095  

EUChartaFR Charter of Fundamental Rights of the European Union of 12/12/2007

Official Journal EU 2007 C 303/1



7  h  ttps://eur-lex.­e uropa.­e u/legal-content/EN/TXT/?uri=​ celex:12012P/TXT  

ECRML European Charter for Regional or Minority Languages of 05/11/1992

ETS No 148



7 https://www.­coe.­int/en/web/conventions/full-list  

FCNM  Framework Convention for the Protection of National Minorities of 01/02/1995

ETS No 157



7 https://www.­coe.­int/en/web/conventions/full-list  

GG  Grundgesetz  – Basic Law (constitution) of Germany of 23/05/1948



7 https://www.­bundestag.­de/grundgesetz



English: 7 https://www.­gesetze-im-internet.­de/englisch_gg/

 

 

GRC Convention Relating To The Status Of Refugees of 1951



7 https://www.­unhcr.­org/4d934f5f9.­pdf  

ICCPR  International Covenant on Civil and Political Rights of 16/12/1966

UNTC IV, 4



7  h ttps://treaties.­u n.­o rg/Pages/ViewDetails.aspx?src=​ TREATY&mtdsg_no=IV-4&chapter=4&clang=_en

XIV

Abbreviations and Sources of Codifications

ICESCR International Covenant on Economic, Social, and Cultural Rights of 16/12/1966

UNTS IV, 3



7  h  ttps://treaties.­u n.­o rg/Pages/ViewDetails.­a spx?src=TREATY​ &mtdsg_no=IV-­3&chapter=4&clang=_en

OJ EU

Official Journal of the European Union

 

UDHR Universal Declaration of Human Rights, adopted by the UN General Assembly on 10/12/1948



7 https://www.­un.­org/en/universal-declaration-human-rights/

UN Charter

Charter of the United Nations Organization of 26/06/1945



7  https://www.­un.­org/en/sections/un-charter/un-charter-full-text/

 

 

UNCRC

Convention on the Rights of the Child of 20/11/1989



UNTS IV, 11



7  h  ttps://treaties.­u n.­o rg/Pages/ViewDetails.­a spx?src=TREATY​ &mtdsg_no=IV-­11&chapter=4&clang=_en

UN(O)

United Nations (Organization)

 

UNESCO United Nations Educational, Scientific and Cultural Organization UNTC

United Nations Treaty Collection, [chapter], [Number]

UNTS

United Nations Treaty Series [volume], [page]

USA

Constitution of the USA



7 https://www.­senate.­gov/civics/constitution_item/constitution.­htm  

XV

List of Figures Fig. 1.1 Hermeneutic circle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Fig. 1.2 Just order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Fig. 1.3 Corrupted order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fig. 1.4 Unjust order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fig. 2.1 The trolley problem. (© Sophie Reinisch). . . . . . . . . . . . . . . . . . . . . . . 28 Fig. 2.2 The hospital case. (© Sophie Reinisch). . . . . . . . . . . . . . . . . . . . . . . . . 29 Fig. 3.1 Hobbes’ conception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Fig. 3.2 Locke’s conception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Fig. 3.3 Virginia Bill of Rights Section 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Fig. 3.4 Rousseau’s conception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Fig. 3.5 French Declaration of the Rights of Man and Citizens. . . . . . . . . . . . 57 Fig. 3.6 Rawls’conception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Fig. 5.1 The specific terms and sub-terms of the term “value”. (© Paul Tiedemann). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Fig. 6.1 Dignity distribution desk. (© Sophie Reinisch). . . . . . . . . . . . . . . . . . . 115 Fig. 8.1 Article 3 ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Fig. 8.2 Article 1 CAT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Fig. 8.3 Article 16 (1) CAT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Fig. 8.4 The circle of deprivation of personhood. (© Sophie Reinisch). . . . . . . 148 Fig. 8.5 Jews cleaning a street in Vienna with their hands (1938). (© Yad Vashem Photo Archive, Jerusalem. 1495/9). . . . . . . . . . . . . . . . 150 Fig. 8.6 Report of the EComHR on the “Greek Case“. . . . . . . . . . . . . . . . . . . 152 Fig. 9.1 Article 5 (1) ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Fig. 9.2 Article 10 (1) ICCPR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Fig. 9.3 Process of institutionalization. (© Paul Tiedemann). . . . . . . . . . . . . . . 168 Fig. 10.1 Freedom of information and expression. . . . . . . . . . . . . . . . . . . . . . . . 178 Fig. 10.2 Right to assembly and association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Fig. 10.3 Restriction clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Fig. 10.4 Performative contradiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Fig. 10.5 “Core”and “Yard” of a positive human right. . . . . . . . . . . . . . . . . . . . 194 Fig. 11.1 Article 8 and 12 ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Fig. 12.1 Listen to God’s commandments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Fig. 12.2 Article 14 Belgian Constitution of 7. Feb 1831. . . . . . . . . . . . . . . . . . . 220 Fig. 12.3 Article 9 (1) ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Fig. 12.4 Lawful and unlawful personalities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Fig. 12.5 Forced evil actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Fig. 13.1 Profane places: Skyline of Frankfurt . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Fig. 13.2 Sacral places: Pyramids of Giza . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Fig. 13.3 “My Wife and my Mother-in-Law”. (© Public Domain (anonymous German postcard of 1888)). . . . . . . . . . . . . . . . . . . . . . . . 241 Fig. 13.4 LAO-TSE, Tao-Tê-King 76, 181. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Fig. 13.5 Article 9 ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

XVI

List of Figures

Fig. 13.6 Fig. 14.1 Fig. 14.2 Fig. 15.1 Fig. 15.2 Fig. 15.3 Fig. 16.1 Fig. 16.2 Fig. 16.3 Fig. 16.4 Fig. 16.5 Fig. 16.6 Fig. 16.7 Fig. 17.1 Fig. 17.2 Fig. 17.3 Fig. 17.4 Fig. 17.5 Fig. 17.6 Fig. 18.1 Fig. 18.2 Fig. 18.3 Fig. 18.4 Fig. 18.5 Fig. 18.6 Fig. 18.7 Fig. 18.8 Fig. 19.1 Fig. 19.2 Fig. 19.3 Fig. 19.4 Fig. 19.5 Fig. 19.6 Fig. 20.1 Fig. 20.2 Fig. 20.3 Fig. 20.4 Fig. 20.5 Fig. 20.6 Fig. 20.7 Fig. 20.8

Article 4 GG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Article 2 ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Article 2 (2) GG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Article 22 UDHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Article 26 (2) UDHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 The efforts of actions and omissions . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Article 12 (3) Banjul Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Article 14 (1) UDHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Article 16 (1) GG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Article 13 (1) UDHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Article 12 (1) ICCPR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Article 33 Geneva Refugee Convention. . . . . . . . . . . . . . . . . . . . . . . . . 307 Article 3 (1) CAT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Article 17 UDHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Article 1 ECHR 1st Add. Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Article 14 GG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322 Article 27 ICCPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 Article 1 (1) UN Resolution 47/135. . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 Article 22 (1) Banjul Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Constitution Bosnia and Hercegovina. . . . . . . . . . . . . . . . . . . . . . . . . . 332 Article 4 declaration of the rights of man and citizen 1789 . . . . . . . . . 332 Article 24 constitution Afghanistan 2004. . . . . . . . . . . . . . . . . . . . . . . 333 US constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Article 2 (1) GG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Freedom of action but not freedom of will. (© Paul T ­ iedemann) . . . . 341 Freedom of will but not freedom of action. (© Paul T ­ iedemann) . . . . 341 Process of balancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344 Article 1 UDHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Article 2 UDHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Article 14 ECHR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 Article 20 EU Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 Article 3 (1) GG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 Scales. (© Sophie Reinisch). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 Three areas of freedom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 Freedom of action v. freedom of action . . . . . . . . . . . . . . . . . . . . . . . . 368 Freedom of action v. margin of HR. . . . . . . . . . . . . . . . . . . . . . . . . . . 369 Margin of HR v. margin of HR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 Freedom of action v. core of HR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373 Margin of HR v. core of HR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374 Core of HR v. core of HR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Induction of morals/deduction of law. (Created by author, © crowd: Sophie Reinisch; © Man Icon: Sophie Reinisch) . . . . . . . . . 379

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Introduction Contents 1.1

The Aims of the Lecture – 4

1.2

The Concept of Human Rights – 5

1.3

The Concept of Philosophy – 14

1.4

The Reasons in Favor of a Philosophical Analysis and Foundation of Human Rights – 18 Reading Recommendations – 20

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_1

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Chapter 1 · Introduction

Hermeneutic Circle Hermeneutic is the methodology of interpreting meaningful human action as well as the products of such actions, most importantly in texts (Greek: hermeneia  =  interpretation). The Hermeneutic Circle refers to the fact that any interpretation is based on, and must start from, a certain pre-understanding of the text. This pre-understanding is based on the context in which the text concerned is integrated. The circle appears from the fact that one must already know about the meaning of the text in order to be able to get further knowledge about the meaning of the text. In the first lesson, the term “human rights” is interpreted in the context of the preamble and Article 1 of the Universal Declaration of Human Rights (UDHR) in order to receive an initial pre-understanding.

Rights A right is a non-violent source of power over fellow humans which makes the holder of the right able to steer the behavior of others for the sake of his own protected interests. This ability is caused by normative acceptance. Normative acceptance is based on the belief that the subjects of the right are to be normatively bound (=obliged). So, a right consists of the following 3 elements: 1. Protection Scope (reference to the content of the right) 2. Commandment (reference to the holder – obligee) 3. Belief to be bound (reference to the addressee  – obligor) The idea of subjective rights was developed in the Middle Ages by analyzing the meaning of the term “property.”

Human Rights The term human rights refers to subjective rights that manifest the following properties (see preamble and Article 1 of the UDHR): 55 Generality and Individuality –– “All members of the human family” are holders of human rights.

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55 Unavailability (not created but found) –– Human beings are “born in rights.” –– Human rights are a matter of “recognition.” 55 Absoluteness –– Human rights are “inalienable.” 55 Morality –– Human rights are a matter of the “conscience of mankind.” 55 Universality –– Human rights are a matter of a “common faith of all peoples of the United Nations.” 55 Super-Positivity –– Human rights should be “protected by law.”

Philosophy Currently, there are two different understandings of philosophy: 55 Analytic Philosophy: The analysis of (basic) concepts in order to improve our understanding of our own language and thoughts. 55 Naturalistic Philosophy: Natural science without empirical means.

Methods of Analytic Philosophy Revisionist explication of concepts (sharpening): 55 Adequateness (connectability with ordinary language use) 55 Empirical Significance 55 Metaphysical Parsimony 55 Distinctness Descriptive Explication: 55 Transcendental Analysis (investigating the conditions of the possibility) 55 Thought Experiments (testing the range and the consequences of certain interpretations of concepts).

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The Reasons in Favor of a Philosophical Foundation of Human Rights

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1. Appropriate interpretation of the scope of protection of the codified rights. 2. Appropriate interpretation of the limits of restriction of the codified rights. 3. Discovery of new (unwritten) human rights. 4.  Distinction between genuine and merely alleged human rights.

1.1 Legal Doctrine Approach

Historical Approach

Philosophical Approach

The Aims of the Lecture

This lecture does not address human rights in the way that is typical of the framework of legal education. Legal education normally consists of an introduction to legal texts that address human rights. Such legal texts tend to be the chapters concerning fundamental rights in national constitutions or international treaties or covenants specifically dealing with human rights. The student should not only know the content of these texts, but also how to apply them. For that purpose, students must study the case law of the highest national courts related to human rights and the case law of the international human rights courts and similarly purposed judicial bodies. We can call this approach the legal doctrine approach. Another approach to human rights is the historical one. Under this approach, students study the historical development of human rights from their beginning up through their recent developments. The historical approach starts sometimes with the Cyrus-Cylinder, a law of the Persian king Cyrus from the year 538 BC. Others start with a famous letter written by the Christian lawyer Quintus Septimus Tertullianus Florens (160–220), in which he coined the expression “ius humanus” – human right (Ad Scapulam). A third group of historical stories starts with the English Magna Carta Libertatum of 1215. Most historical presentations, however, start with the Virginia Bill of Rights of 1776. In this course, we will neither follow the legal doctrine approach nor the historical approach  – although it will sometimes be necessary to illustrate our results with references to doctrine and history. We will follow the philosophical approach. This is an approach on its own but it is also closely connected with the doctrinal approach and

5 1.2 · The Concept of Human Rights

the historical approach. Only philosophical analysis makes clear what has really occurred throughout history. Contemporary agents within the historical play very rarely have a sufficient awareness of what they are doing and thinking. Only through philosophical reflection of what happened in history can one begin to explain and reveal the real significance and consequences of ideas, which are developed in the past. Philosophical analysis is not a purely abstract and theoretical venture. Rather, it supports the rationality of case law and doctrine. By uncovering the meaning, significance, and logical consequences of human rights, philosophical analysis can contribute to the improvement of case law and legislation. Skillful philosophical analysis of human rights enables lawyers to develop an independent critical view on case law and makes them capable of finding a convincing argumentation in matters of human rights that may support the interest of their clients and the development of rational human rights case law. Before we can start with the philosophical analysis, we have first to clarify the basic concepts. A lecture on the philosophy of human rights can only start if we have ­sufficient clearness on the two key concepts: 55 To what do we refer if we talk about human rights and what is meant by “human rights” in the context of this lecture? 55 What do we actually intend to do, when we speak of a philosophical analysis? What is meant by philosophy?

1.2

The Concept of Human Rights

The first question may appear confusing to you. The clarification of what human rights really are is the aim that we want to follow by means of philosophical analyses. Therefore, it seems to be true that this question can only be answered at the end of the lecture and not before we start. It is not possible, however, to begin our investigation if we do not have any idea of the concept that we want to analyze. To be sure, what we intuitively know about the idea may be nebulous. But, without this initial understanding, we cannot begin say what we are wrestling with. This situation  – already knowing something about a certain idea before you can start to collect knowledge about the exact meaning of that idea – is called the herme-

Hermeneutic Circle

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neutical circle (see . Fig. 1.1). We must always start with a certain preconception of what we want to discover (= n). Philosophical work, then, consists in the development of a more sophisticated version of this preconception (=n + 1). This new version becomes the preconception of any further analysis (n + 1 = n) and so on. The process only comes to an end if the capacity of our fantasy is exhausted and if we reach the feeling that everything that may possibly be said about the concept has been said. Nevertheless, this is only a temporary end of the analyses. We can never be truly sure whether the extent of our fantasy may expand in the future and give rise to new questions that may coerce us into continuing the philosophical analyses. So, we first have to determine our provisional understanding of the concept of human rights that should serve as the starting point of our considerations. I start with the element “right” in the concept “human right.” What is meant by “right”? “Right” is meant as a subjective right. The concept of subjective rights was developed slowly in the Middle Ages in the context of ­discussions about property. Subjective rights did not exist as they are conceived of under the traditional understanding of law. The law consisted only in obligations. There were, so to say, only obligors but no obligees. Legal obligations were considered obligations toward the legislator.  

Right

More sophisticated concept n+1

Preconception n+1= n

Preconception n

More sophisticated concept n+1 ..      Fig. 1.1  Hermeneutic circle

7 1.2 · The Concept of Human Rights

Those who could enjoy the benefits of one’s fulfillment of his obligations could enjoy their fulfillment only as a side-­ effect. If someone did not fulfill his obligations, he was threatening with public punishment, which had no direct effect toward those who were harmed. The Roman private law recognized the procedural right to take legal action against someone who hurt the property of another. But, they had no clear awareness of the fact that the right to take legal action depends logically from having a material right to property. Only in the Middle Ages did it became more and more clear that property was not a relationship between human beings and things, but rather a relationship among human beings, in particular, between an obligor and one or more obligees, and thus a material right to which a claimant of legal action may refer. In contrast to liabilities, which are based on individual contracts, the obligations owed to the owner of property were considered the obligations of everyone, independent of any individual contractual relationship with the obligee. A deeper reflection about the question what property actually is led to the result that owners of property are considered as having a certain kind of power over others, according to which they could force these others to respect a certain sphere of belongings or activities of the owner. This was the introduction of the idea of subjective rights. Subjective rights can be understood as a source of Definition power of an obligee over one or more obligors. It is the power of the holder of the right to steer the behavior of others for the sake of his own interests. Subjective rights only exist where fellow humans accept the power of the bearer of the right by recognizing themselves as obligors toward an obligee. This acceptance is not only a kind of understanding of real facts about the ability to impose something by force. Rather, it is a normative acceptance according to which the obligor feels obliged to recognize a certain sphere of freedom and to follow the commandments of the obligee so long as these commandments relate to the sphere of freedom that is the subject of the right. A subjective right, therefore, always has a certain structure. We can distinguish three elements: 1. A subjective right defines a certain scope of power or freedom, which is the content of the right. This aspect of a right is called protection scope. Every single right refers to a specific protection scope. The protection

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scope can refer to certain material things, like an area of land or particular mobile things (cars, pencils, clothes, etc.). If the protection scope refers to such material things and if the respective right demands respect of the exclusive power of a certain individual over these things, we talk about property. The protection scope can, however, refer to other spheres of exclusive power, for example, the power to determine what someone wants to speak out loudly, or the power to behave in a certain manner etc. In these cases, we talk about freedoms or privileges. 2. The second element of a right is the actual normative element which we call a commandment: Be respectful! Do not touch or infringe upon the scope of protection! Do not disturb me while I am behaving deliberately within the frame of the protection scope! 3. The third element of a right is the conviction of the addressees of the commandment to be normatively bound by that commandment. When members of a particular society collectively believe in certain obligations, the beliefs become a cultural reality. In such cases, well defined rights exist as part of the culture of the society.

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Human

The function of a philosophical foundation of human rights thus becomes clear. As rights are based on a common belief in binding power, it is important to question the basis of this belief. This basis may be formed on irrational or rational considerations. If our belief in rights is based on irrational considerations, then it is possible to destroy it simply by showing the irrationality. Human beings are (ideally) rational living entities. They tend to be incapable of feeling bound to ideas which they consider irrational. The task of philosophical reflections is therefore to examine the idea of human rights in terms of a rationally based belief in them. Now I come to the second part of the term “human rights.” What is meant by “human”? The idea of rights is a human idea. It is potentially part of human culture. In this meaning, we can say that rights are always human rights. Animal rights insofar as animals have their own authentic idea of rights do not exist. The meaning of the concept “human” is so broad and so vague that it is not possible to understand the meaning simply by analyzing the word. We must examine the context in which the word appears in order to find an appro-

9 1.2 · The Concept of Human Rights

priate pre-understanding of “human.” For that reason, we should look to documents that address human rights. The most fundamental document for the current conception of human rights is the Universal Declaration of Human Rights that was adopted by the UN General Assembly on December 10, 1948 (UDHR). The preamble of the UDHR provides:

»» Whereas recognition of the inherent dignity and of the

equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind […] Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, […] Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights

Article 1 further provides:

»» All human beings are born free and equal in dignity and rights.

These quotations give a first look of what we may come to understand in the word “human”: 1. All members of the human family are holders of human rights. 2. Human beings are born in rights. Human rights are a matter of recognition. 3. Human rights are inalienable. 4. Human rights are a matter of the conscience of mankind. 5. Human rights are a matter of a common faith of all peoples of the UN. 6. Human rights should be protected by law. The word “human” in “human rights” tells us something about the holder of these rights. All members of the human family are holders of human rights (1). Family obviously refers to mankind as such while member obviously refers to each human individual. From this first statement we can grasp the individuality and generality of human rights.

Individuality and Generality

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1 Unavailability

Absoluteness

Importantly, the wording in the UDHR differs from that of the preamble of the UN Charter of 26 June 1945. The Charter does not refer to the rights of each member of the human family, but rather the rights of each human person. We should this difference keep in mind. By which process do human individuals become holders of human rights? The preamble of the UDHR notes that human individuals are born in rights (2). This expression is to be understood as a metaphor because rights are normative ideas. They belong to the world of thoughts and not to the world of natural facts. The characteristics that human beings are born with are only a matter of natural facts and not a matter of their internal thinking. But, what should be said with this metaphor is that there is no act of conferring by which human beings will be endowed with human rights. Human rights do not depend on someone arbitrarily or deliberately deciding whether to confer human rights upon another. Humans always have these rights. Therefore, ascribing human rights to human individuals is not a matter of willingness and decision making, but rather a matter of recognition (2). Nobody is entitled to decide whether or not human rights should be conferred to a human individual—that is, whether or not a human being is to be considered a holder of human rights. We have only to recognize that human rights have already been conferred to human individuals. What is said by inalienability (3)? Because human rights are considered as always already being conferred and therefore not based on any possible act of conferring them, human rights must also be considered something that cannot be revoked. Accordingly, there is no recognizable normative power or recognizable procedures or reasons and justifications for the deprivation of human rights. It is simply not possible to deprive a human individual of his or her human rights. From this follows that human individuals cannot be partially deprived of their human rights by reducing the scope of protection of human rights or by making the recognition of human rights a matter of balancing with other interests. Inalienability leads to the conclusion that human rights must be considered absolute rights. Specifically, absoluteness means the following: 1. There is absolutely no situation or condition under which it is possible to deny the recognition of one’s human rights. Criminals, prostitutes, and terrorists

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have exactly the same rights to the same extent as anybody else. However evil or bad behavior may be, it never leads to the result that someone may have forfeited his human rights. 2. The recognition of human rights can come into conflict with the recognition of other values, rights, and traditions. But, whatever the conflict is, human rights always prevail. It is not possible to assign a lower rank to a human right as compared to any other value or interest. We should keep in mind that this idea could lead to serious problems if it comes to a conflict between two interests when both of them are protected by a human right. 3. The always prevailing position of human rights does not allow any compromise between conflicting interests, when one of them is protected by a human right. The recognition of human rights is not an act of discovery that we express in propositional sentences of the form “It is the case that …”. Rather, it is a discovery of normative obligations. This becomes clear in the reference to conscience (4). Conscience stands for our convictions in the moral rules to which we feel bound. The reference to the common faith of mankind (5) claims the universality of human rights. The UDHR claims that the faith in human rights is not only relative to a certain regional or religious tradition or culture. It claims, rather, that it is a common faith of mankind that is recognized and appreciated worldwide by every member of the human family, independent of time, region, or culture. I think it is not difficult to understand that this claim is empirically false. Throughout history and in current times, there have been cultures in the world that do not have an idea of human rights. Therefore human rights are not a matter of a common faith. The proposition in the preamble cannot deny this empirical fact. It can be understood, rather, as the expression of the belief that it is generally possible to convince mankind, i.e., every member of the human family, of the binding power of certain inalienable human rights. The last proposition of the preamble of the UDHR states that human rights should be protected by law (6). From this we can conclude that human rights as defined by the UDHR are not considered legal rights. Otherwise, they would be part of the law and it would not make any sense to say that they should be protected by law.

Morality

Universality

Super-Positivity

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Comparatively, it is clear that those human rights, which are codified in several international covenants and treaties as well as in national constitutions, are of course legal rights. What the clause wants to say is that non-legal human rights should be transformed into or transmitted through legal rights in order to protect them more efficiently. The connection between legally codified human rights and human rights into which human beings “are born” is expressed in the distinction between positive law and its relation to super-positive standards. Human rights must be considered extra-systemic sources of the legal system. This is meant when we say that human rights have a super-­ positive character. “Positive” in this context is not the opposite of “negative.” It means, rather, that the norms of the legal order are put down by the legislator of that system. “Positive” is derived from the Latin past participle of ponere (to put) and means “settled by agreement.” It is the traditional opposite of “natural.” Positive laws, as such, are created by men while natural laws are created by God or by nature. However, I do not use the word “natural” in order to talk about the opposite of “positive.” Instead, I use the word “super-positive” to indicate a kind of law that is not made by the sources of the legal system (legislator, parliament, etc.) but from something else. Furthermore, this extra-­ systemic source is “super” insofar as it has a higher rank than the positive law. The higher rank makes it possible for the legal system to be evaluated on such a scale. “Super-positive,” however, does not mean “natural.” The term leaves it intentionally open what the sources of super-positive law are. The term is thus not already fixed on God or on nature as a source of non-positive law. Generally, when we speak of human rights as super-­ positive rights, we do so in terms of a moral basis. This does not force us to think that the rules of morality, including moral rights, must be something that are not invented or created by men, but rather revealed by God or by nature. Even if we think of morality as a product of human culture, it is nevertheless not a product of the legal system. Rather, it is something created outside of law, based on standards and considerations that are different from those within the legal system. Thus, moral rules can be understood as positive rules, either. But from a legal point of view, they can be considered as being super-positive in that they are created beyond

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the boundaries of the legal system. Moral rules are an extra-systemic source to which the law may or may not refer. The super-positive characteristic of human rights, in turn, provides for the most important function of these rights. They serve as instruments by which it is possible to evaluate an entire legal system. They are a means to question its justness, corruption, or unjustness. Indeed, the function of legal system is to produce standards of justice and corruption. But as long as these standards are positive legal standards, they can only function to evaluate particular parts of the legal system as opposed to the legal system as a whole. In other words, you can evaluate the justice of a judicial or administrative decision on the standards of a communal regulation. The justice of the regulation can be evaluated on the standard of the parliamentarian statute. The statute can be evaluated on the standards of the constitution. But there is no legal standard beyond the constitution by which the constitution can be evaluated. In order to evaluate the constitution of a legal system, i.e., the system as a whole, there must be some reference to a super-positive standard—e.g., a moral standard. Human rights are moral standards that lend themselves to the evaluation of legal systems as a whole. A legal system is only legitimate if it is in line with human rights. This is the case if there is no principle conflict between any part of the legal order and human rights (see . Fig. 1.2). A legal system is corrupted if important parts of the legal order are in conflict with human rights and the legal system does not include any self-healing functions (see . Fig. 1.3).  

 

an Rights Hum

Legal order

..      Fig. 1.2  Just order

Function of Moral Human Rights

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an Rights Hum

Legal order

..      Fig. 1.3  Corrupted order

an Rights Hum

Legal order

..      Fig. 1.4  Unjust order

Finally, we can call it an unjust legal order when no important part of it is in line with human rights, which is to say that the legal order is outside the frame of human rights (see . Fig. 1.4).  

1.3

The Concept of Philosophy

So far, we have described the preconception of what we want to understand by human rights. You should further recognize that this preconception of the term “human rights” is not undisputed. In particular, many American philosophers share the opinion that human rights are only characterized by their specific content. But they consider these rights pure legal rights which have nothing to do with morality. Additional references to this view may be found in the bibliography at the end of this chapter (Raz 2010; Waldron 2013). Now I come to the other concept that needs some reflection and clarification. This lecture deals with a philosophical foundation and a philosophical analysis of

15 1.3 · The Concept of Philosophy

human rights. Thus, we must clarify what should be understood by “philosophy.” What is meant by philosophy? Today, we can distinguish between two different conceptions of philosophy. According to the first and more traditional conception, philosophy deals with the world of facts. It is a kind of science that addresses everything that any other science may address. The only true difference to other sciences is that philosophy asks broader questions and comes to more abstract answers. This is what is called the naturalistic conception of philosophy. According to the second conception, philosophy deals with the meaning of concepts. Its aim is to clarify concepts in order to avoid confusion and to make us able to understand our own thoughts. This is what we call the analytical conception of philosophy. I personally do not share the naturalistic approach. I think that questions concerning the facts of the world are always empirical questions that demand empirical answers. It is the task of empirical sciences to deal with empirical questions and empirical sciences can ask these questions with different levels of abstractness. We do not need a non-empirical discipline in this field. Non-empirical approaches cannot lead to any real understanding and ­discovery of the empirical reality. It might be that something exists beyond the empirical reality. Nevertheless, whatever may lie beyond our empirical world is not accessible to us as human beings. It is not possible to get any knowledge about it. Naturalistic philosophy tends, therefore, to replace knowledge with simple speculation and a play of fantasy. Although that often sounds very interesting, such is in fact an aspect of science fiction rather than a component of a serious, rational approach. I therefore follow the analytic conception of philosophy. The clarification of concepts can give us a clearer understanding of our own thoughts and aims. The clarification of concepts is done by explication. We distinguish between two different sorts of explication – the descriptive and the revisionist explication. The revisionist explication deals with the concepts of ordinary language that are much too vague for the purposes of science, law, and ethics. The vagueness is mostly the result of a more or less intuitive development of meaning of concepts. The concept of human rights is an excellent example of a concept to which meaning may be intuitively associated. The task of analytic philosophy is

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Naturalistic Philosophy

Analytical Philosophy

Revisionist Explication

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Chapter 1 · Introduction

1 Connectability Empirical Significance

Metaphysical Parsimony

Distinctness

Descriptive Explanation

to improve the concept in order to make it sharper and to delete vagueness as much as possible. It is clear that the explicated concept may not be identical to the original concept in its ordinary language. Nevertheless, the explication is not arbitrary. It is necessary to make sure that the explicated concept is materially adequate in light of the original concept. There must thus be a connection between the original and the explicated concept. Although both do not need to have the same meaning, they must have a similar meaning. The explicated concept must serve the same function and purpose as the original. Whether the explicated concept is materially adequate depends on the purpose. To elaborate, it is possible to explicate the concept of “fish” as “vertebrates that live in the sea” when the purpose is to distinguish different animal habitats in the sea. Such a definition, however, would not be adequate for the purpose of zoological classification. The explicated concept may be different from the original in terms of extension, but not in terms of function. Furthermore, the revisionist explication must be ­adequate in terms of normative requirements. There must be a certain connection between the normative concept and the objective reality. Otherwise, we would think about a normative order for Nowhere-Land. So, the revisionist explication must be adequate to the norm of empirical significance. The explication should also be adequate in terms of what I want to call metaphysical parsimony. It is necessary to reduce the connection between the concept in question and the metaphysical preconceptions to a minimum or – if possible  – to avoid them altogether. This becomes clear when we consider the characteristic of universality of human rights. Metaphysical ideas are almost always, or at least very often, a matter of belief without any possibility for rational confirmation. Metaphysical ideas are therefore dependent on religion, tradition, and other regional and cultural influences, which cannot be universalized. Finally, the explication should lead to a distinct concept. Distinctness means that it must always be clear from what conditions and attributes the concept depends on, regardless of whether the concept refers to a certain entity or to a specific idea. The other kind of explication is the descriptive explication. This kind of explication does not modify the meaning of the concept, but it should bring the deep structure of its

17 1.3 · The Concept of Philosophy

content to light. One of the most prominent methods of descriptive explication is the transcendental analysis as developed by Immanuel Kant. The transcendental analysis investigates the conditions of the possibility of a term. A famous example is the concept of a promise. According to Kant, the binding power (validity) of a promise is based on the fact that holding the promise is the condition of possibility inherent in the term “promise.” If people made promises without feeling obliged to honor them, the concept of a promise would lose all meaning. Its meaning would be reduced to the same level as the common saying “How are you?” This saying has become an empty rite. Nobody who asks this question really wants to know something about the conditions of life of the addressee. In a similar way, promises would become an empty phrase if nobody felt obliged to follow them. A very common and useful instrument of philosophical thinking is the so-called thought experiment. Thought experiments are invented short stories with a contra factual scenario. By telling the story, we make use of a particular concept which may be tested through the experiment. A very famous example is Plato’s so-called “Cave Parable.” Plato uses this story in order to show the meaning of the concept “idea.” The purpose of thought experiments is to test our understanding of concepts. Thought experiments show the consequences of a particular understanding of a concept. In some cases, the consequences turn out to be absurd. In these cases, the thought experiment shows that our understanding of the concept in question is not appropriate and that we should think about another better understanding of the concept. In other cases, thought experiments show the range of the concept, which can appear as very surprising but nevertheless meaningful. This explanation might sound very abstract. In the next lesson you will become more familiar with thought experiments. As I mentioned before, the foundation of human rights is not solely a philosophical business. We must also note the findings of the empirical sciences. Therefore, the lecture is not only a philosophical lecture. Furthermore, we must always ask whether our philosophical or empirical findings can be implemented into the structure of our legal system and our legal thinking. Accordingly, our lecture is neither a pure philosophical one nor a pure empirical one nor a pure juridical one. It is, rather, an interdisciplinary venture on a very sophisticated level.

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Empirical Arguments

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Chapter 1 · Introduction

1.4

1

Vagueness

 he Reasons in Favor of a Philosophical T Analysis and Foundation of Human Rights

Finally, in this introduction I want to summarize the reasons why it is useful to climb over the limits of legal doctrine and to reflect on the foundation of human rights in an interdisciplinary manner. There are at least four reasons why it is necessary and useful for jurists to have a proper knowledge about the ­fundamental ideas behind human rights: (1) The first reason relates to the challenges of appropriate interpretation of those elements in human rights which describe the scope of protection. The definition of the protection scope of many human rights is very nebulous because codifications of human rights tend to use very vague language. This vagueness has advantages and disadvantages. The formulation of the particular human rights in our human rights codifications goes back to particular historical experiences. New sources of human suffering led to new human rights. Nevertheless, human rights are not protocols of former historical events, but rather warnings against future risks and dangers to human beings. But therein lies a problem. History does not repeat itself exactly. Future events will never occur exactly the same as those in the past. Therefore, it is necessary to describe the scope of protection of every human right in terms which are wide enough to cover future variants of past threats— that is, similar to, but not identical to those threats of the past. This is why human rights use more or less vague concepts. By doing so, human rights can be what the ECtHR in the case “Tyrer” called a “living instrument.” This vagueness also has the advantage that human rights can be applied to new, unpredictable situations. This same vagueness, however, can also lead to a large uncertainty about the proper interpretation of human rights. We are therefore dependent on reasonable and reliable criteria that allow for proper and well justifiable interpretations of the protection scopes of human rights. These criteria are the ideas and principles behind human rights, the ideas that form the basis of the human rights. Without considering these ideas, it is not possible to interpret the scope of protection of the particular human rights in a proper way. Therefore, jurists need some knowledge about the foundation of human rights.

19 1.4 · The Reasons in Favor of a Philosophical Analysis…

(2) The second reason relates to the challenges of appropriate interpretations to the limits of restriction. As you probably know, most human rights in the national and international catalogues are subject to reservations for varying reasons. The stated reasons very often are very vague. For example, some articles of the European Convention of Human Rights provide that the rights therein may be restricted by operation of law and if the restriction is necessary in a democratic society; in the interests of national security, territorial integrity, or public safety; for the prevention of disorder or crime; for the protection of health or morals; for the protection of the reputation or rights of others; for preventing the disclosure of information received in confidence; or for maintaining the authority and impartiality of the judiciary. The wording of these clauses is so wide and vague that it seems that the state can reduce human rights to nothing. Only if you have a clear understanding of the concept of human rights in general and of the particular human right concerned are you then able to define the limits of any possible restriction. Only on the basis of a proper understanding of the foundation of human rights can you then assess the case law about the limits of restriction and criticize it in a serious way that has a chance of convincing judges. (3) The third reason relates to the challenges that are connected to the fact that we can be confronted with new risks and dangers to human life that are beyond the scope of any written human right, which require us to ask whether it is possible to formulate new, currently unwritten human rights. Only if we have a proper knowledge about the foundation of human rights are we then able to derive new human rights using these basic principles. A paradigmatic situation which has led to the discovery of a new unwritten human right, was the digital revolution, i.e., the invention of digital information technology and the invention and worldwide setup of the Internet. These developments led to the construction of new and unwritten human rights by national and international supreme courts. The first example, so far as I know, was the declaration of the Right to Informational Self-­Determination by the German Federal Constitutional Court in 1983. Meanwhile recent human rights codifications implemented that right so that it is now not unwritten anymore but part of the codified corpus of human rights. Consider, for example, Article 8 of the EU Charter of Fundamental

Limits of Restriction

New Risks

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1 Fake Human Rights

Rights. Another example as recent as 2014 is the “Right to be forgotten,” as developed by the Court of the European Union in the case “Google Spain SL.” (4) The fourth reason behind the relevance of knowledge about the foundation of human rights also relates to the possibility of discovering new human rights. Due to this possibility it is not surprising that we are often confronted with the claim of alleged human rights that are not actual human rights (e.g., a right to smoke, a right to consume drugs, a right to a collective identity, a right to posthumous dignity, etc.). It is a usual strategy in political propaganda to claim the existence of a human right to push and enforce a certain partial, individual, or collective interest. We can see very often that particular political and social interests are called human rights so as to give them higher weight and immunize the same against criticism. A closer analysis, however, shows that many of these interests in fact have nothing to do with human rights. In order to be able to distinguish between genuine human rights and merely purported human rights, we must have a very clear concept of human rights. We must know the defining elements of that very concept and check whether these elements are met in a particular case. The defining elements of human rights are exactly those which deliver the foundation of human rights. And this is precisely the fourth reason why we should have some knowledge about the foundation of human rights. ??Do you still remember?

1.1  Explain in a few words what is meant by the Hermeneutic Circle. 1.2  There are two different types of philosophy. Describe the two using a few words. 1.3 What is meant by a right? 1.4 On the basis of the preamble and Article 1 of the UDHR it is possible to characterize human rights by 6 characteristics. Identify these characteristics and explain them in a few words.

For the answers, see 7 Chap. 21.  

Reading Recommendations Alexander, Larry / Moore, Michael: Deontological Ethics. In Stanford Encyclopedia of Philosophy, 2012  – http://plato.­stanford.­edu/ entries/ethics-deontological/

21 Reading Recommendations

Beaney, Michael: Analytic Philosophy. A Very Short Introduction. Oxford 2017 Clapham, Andrew: Human Rights. A Very Short Introduction. 2nd ed. Oxford 2015 Cruft, Rowan / Liao, S. Matthew / Renzo, Massimo: The Philosophical Foundations of Human Rights. An Overview. In: Cruft/Liao/Renzo (eds.): Philosophical foundations of Human Rights. Oxford 2015, pp. 1–41 Ernst, Gerhard / Heilinger, Jan-Christoph (eds.): The Philosophy of Human Rights. Contemporary Controversies. Berlin 2012 Foot, Philippa: The Problem of Abortion and the Doctrine of the Double Effect. Virtues and Vices: Oxford 1978 Greimann, Dirk: Regeln für das korrekte Explizieren von Begriffen. Zeitschrift für philosophische Forschung 61 (2007), 3 Hohfeld, Wesley Newcomb: Fundamental Legal Conceptions as Applied in Judicial Reasoning and other Legal Essays. New Haven. Yale University Press 1920. https://archive.­org/details/fundamentallegal00hohfuoft Leiter, Brian: Naturalism in Legal Philosophy. In Stanford Encyclopedia of Philosophy, 2012. http://plato.­stanford.­edu/entries/lawphil-­ naturalism/ Menke, Christoph: Subjektive Rechte. Zur Form der Differenz In MenschenRechtsMagazin 13 (2008), 197 Papineau, David: Naturalism. In Stanford Encyclopedia of Philosophy, 2015. http://plato.­stanford.­edu/entries/naturalism/ Preston, Aaron: Analytic Philosophy In: Internet Encyclopedia of Philosophy, http://www.­iep.­utm.­edu/analytic/ Raz, Joseph: Human Rights without Foundation. In: Samantha Besson/ John Tasioulas (ed.): The Philosophy of International Law, Oxford 2010 Schaber, Peter: Human rights without foundations? In: Gerhard Ernst & Jan-Christoph Heininger (eds.), The Philosophy of Human Rights. Contemporary Controversies. Berlin/Boston 2012 Tasioulas, John: On the Foundations of Human Rights. In: Cruft/Liao/ Renzo (eds.): Philosophical foundations of Human Rights. Oxford 2015, pp. 45–70 Wenar, Leif: Rights. In: Stanford Encyclopedia of Philosophy, 2015. http://plato.­stanford.­edu/entries/rights/ Waldron, Jeremy: Human Rights: A Critique of the Raz/Rawls Approach. In: NYU School of Law, Public Law Research Paper, June (2013)

Case Law ECtHR, jud. of 25/04/1978  – 5856/72 –, “Tyrer v UK” n.d., http:// hudoc.­echr.­coe.­int/ BVerfG, jud. of 15/12/1983 - 1 BvR 209, 269, 362, 420, 440, 484/83 -, “Informationelle Selbstbestimmung”, BVerfGE 65, 1. n.d. CJEU jud. of 13/05/2014 – C-131/12 –, “Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González,” n.d. ­http://eur-lex.­europa.­eu/collection/eu-law/eu-case-­ law.­html

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The Utilitarian Approach – 26

2.2

The Aristotelian Approach – 31

2.3

 equirements for an Adequate Theory R of Foundation – 40 Reading Recommendations – 41

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_2

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Foundation of Human Rights – The Appropriate Moral Theory

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In order to set up a sufficient philosophical foundation of human rights as moral rights, it is first necessary to choose the appropriate understanding of morality. So, we must determine whether there is at least one among the classical theories of morality that could serve this purpose.

Moral Theories – Hedonism The moral theory of Hedonism was developed in ancient Greece. A famous representative of this approach is Epicurus of Athens (351–270  BC). According to this theory, human beings are morally obliged to follow the rules to maximize their individual, sustainable happiness. Hedonists have only obligations toward themselves. They have no obligations toward others. Thus, there are no moral rights toward others because there are no duties owed toward others.

Moral Theories – Utilitarianism The moral theory of Utilitarianism was developed in the nineteenth century by Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873). According to this theory, human beings are morally obliged to achieve the “greatest happiness for the greatest number” of all living entities who can experience pleasure and sadness and are able to suffer  – the theory thus takes into account not just human beings, but also animals. The happiness or suffering of individuals or a minority can be offset against the happiness or suffering of a majority. Therefore, this theory is not appropriate to justify subjective rights.

Moral Theories – Aristotelianism In this lecture, Aristotelianism stands for a pattern of moral theories that are based on a certain understanding of “the nature,” deriving moral obligations and rights from this factual source. Aristotle identified this source with the polis and considered the human individual a “political entity” (i.e., one whose meaning of life is to

25 Chapter 2 · Utilitarian and Aristotelian Approach

serve the community). The philosophers of the Stoa referred to the nature of the cosmos – the natural world order  – as the source of moral duties. The Islamic philosopher Ibn Rushd (1126–1198) tried to bring this approach in accordance with the Islamic religion. His influence led the Christian philosopher and theologian Thomas Aquinas (1225–1274) to the opinion that the will of God as the creator of nature is the last source of morality. Martha Nussbaum (1947–) pursues an anthropological approach by deriving the rules of morality from the capabilities of a human person. All these variants of the Aristotelian approach suffers either from the naturalistic fallacy or from an infinite regress. The Aristotelian approach is mostly connected with a teleological view. The world as a whole or all living entities or particular human beings are considered as having an inherent aim that they must follow – that is, humans live in accordance with the meaning of life.

Naturalistic Fallacy The term Naturalistic Fallacy refers to the false logical conclusion from a fact (“Is”) to a norm (“Ought”). Originally, the term was coined by the English philosopher George Edward Moore (1883–1958), who used this term in order to describe the mistake which occurs when “the good” is not understood as a property of its own (like “yellow”) but something that refers to natural facts (e.g. health, wellbeing). The logical mistake itself was discovered by the English philosopher David Hume (1711–1776) – “Hume’s Law”.

Infinite Regress of Justification The idea that the will of God in his capacity as legislator can serve as the ultimate ground for the justification of moral rules avoids the naturalistic fallacy. Nevertheless, this notion cannot reconcile the fact that there is no reason to cut the chain of justification when it comes to God. Rather, there is a philosophical need to justify the position of God as legislator. It is necessary to show

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that God’s legislation  – like any legislation  – must be based on legitimacy. The possible legitimacy can only follow from the fact that God was endowed with the capacity of legislation by some higher ranked authority. But, the legitimacy of this higher ranked authority must come from another still higher authority. This leads to an infinite regress.

2

Methodological Individualism The justification of moral rules requires the position of Methodological Individualism. The ultimate authority toward whom arguments of justification must be addressed can only be an entity that is endowed with reason and conscience. Reason refers to the ability to assimilate or to digest rational arguments. Conscience refers to the ability to establish a structure of meaning in life in order to set up a system of standards of orientation for rational operations. Because only individual human persons are endowed with reason and conscience, any kind of justification must be addressed toward human individual persons. A moral norm is only justified toward an individual person when this person accepts it by using her capacity of reason and conscience. Moral norms cannot be imposed on a person against her will.

Normative Individualism As the justification of a norm order depends on the individual ability of reason and conscience, it is unthinkable that human individuals accept a norm order which does not protect their reason and conscience, or which is based on disrespect and disregard toward the individual competence of reason and conscience.

2.1 Starting Point?

The Utilitarian Approach

We are looking for a foundation of human rights by philosophical means. In other words: we try to find ground on which we can erect the building of human rights. But where should we start?

27 2.1 · The Utilitarian Approach

As we have seen in the first lesson, codified human rights are based on the idea of super-positive moral human rights. Moral human rights are rights which are based on morality. In order to find a reliable ground for human rights it is therefore a good idea to study the theory of morality. Unfortunately, there is not only one such theory. In fact, the philosophy of ethics has developed several types of moral philosophy, requiring us to choose the one which is sufficient for our purpose. In this lesson, I want to deal with two kinds of moral theory. The first one is called Utilitarianism. The other one can be called Aristotelianism or Natural Law Approach. Let’s start with Utilitarism. It is appropriate to start with this theory because it is the prevailing moral theory in English speaking countries, particularly the USA. Interestingly, the level of discussion about the foundation of human rights in the USA is rather poor. In particular, the idea that human rights should – from a legal point of view  – consider super-positive rights is not a prevailing one. I guess this has a lot to do with the prevailing moral theory. Utilitarianism is a concept that was developed in the Hedonism nineteenth century by the English philosophers Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873). There is, however, a very old predecessor of Utilitarianism. This was the so-called Hedonism, which was represented by some famous philosophers in ancient Greece, among them Epicurus of Athens. The Hedonists share the opinion that human beings are morally obliged to only follow the rules that bring them the maximum level of individual, sustainable happiness. While the Hedonists think from the standpoint of the Utilitarianism particular person who is considering what she should do, the Utilitarians consider the problem from a super-­ personal point of view. They do not focus on the happiness of particular persons, but rather the total amount of happiness in the world. The maximization of happiness from the viewpoint of every individual is not the relevant inquiry. What is relevant is the maximization of happiness of the whole society or, in the case of thinkers like Peter Singer, of the entireness of all living entities that can experience pleasure and sadness or suffering. The slogan is “greatest happiness for the greatest number.” It is obvious that the Hedonist approach is an inadequate foundation for human rights. Hedonists only have

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Trolley Problem

obligations toward themselves. They have no obligations toward others. It is possible that a Hedonist may also respect the interest of others. But the only reason for this is that the happiness of the other makes himself happy. This is the case when he loves the other or if the other is motivated to support the happiness of the Hedonist. If the other is of no interest to the Hedonist, then there is also no obligation to respect the other’s interests. Human rights refer to mutual obligations that largely depend on the fact that the other is a human being. That is to say, such obligations are complementary and do not depend on the retroactive effect of the fulfilment or non-­ fulfilment to the obliged person. Similarly, the Utilitarian approach is also an inadequate foundation for human rights. Indeed, the Utilitarian recognizes having obligations toward others, but these obligations do not relate to a right within the others. The benefits that someone receives from another who wants to fulfil a moral obligation are only an incidental side-effect of the interaction. The recipient of such an exchange is not recognized as an individual that holds rights or that has the moral power to issue commandments. Fulfilling any obligation in such a paradigm is only intended to enlarge the total amount of happiness in the world and not the happiness of any particular individual. The inadequacy of the Utilitarian approach for the foundation of human rights becomes clearer through the “The Trolley Problem.” (see . Fig.  2.1). The “Trolley Problem” is a thought experiment made famous by the description of the British philosopher Philippa Foot. In short, it tells the following story: A tram is out of control and threatens to overrun five people. By changing a switch, the tram can be redirected to another track. Unfortunately, there is another person there. The question is now: Is the death of that person acceptable in order to save the lives of five people? The Utilitarian answers: yes, because a world with five survivors is a bet 

..      Fig. 2.1  The trolley problem. (© Sophie Reinisch)

29 2.1 · The Utilitarian Approach

ter world than a world with only one survivor. This result is sensible only under the assumption that there is no such a thing like subjective rights. Nevertheless, it is interesting to see that even Utilitarians are no longer sure of the answer if we slightly modify the thought experiment. Consider the following case (see . Fig. 2.2): There are four individuals. One of them suffers from lung cancer. He will die unless he undergoes a lung transplant. The second one suffers from stomach cancer. He will die unless he undergoes a stomach transplant. The third person suffers from a chronic kidney disease. He too will die unless he undergoes a kidney transplant. The fourth person is healthy. The moral question is whether there is an obligation to respect the life of the healthy person by accepting that the three others will die? Or, alternatively, is there an obligation to rescue the life of the three by killing the healthy person and transplanting his healthy  

..      Fig. 2.2  The hospital case. (© Sophie Reinisch)

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organs to the ill persons? According to the Utilitarian approach, the answer depends on what is determined to be the relevant extra-moral value. Assuming this relevant value is the maximization of pleasure. If the three ill persons die then they will not enjoy pleasure anymore. Refraining from doing anything would lead to the result that three “portions of pleasure” will be destroyed while one “portion” will be rescued. Comparatively, if the healthy person is killed, he will not enjoy pleasure anymore. In this case, one “portion of pleasure” will be destroyed while the other three “portions” will be rescued. Therefore, the principle of maximization of pleasure leads to the moral obligation to dictate the killing of the healthy person and transplanting her organs to the three ill persons. The result of the Hospital Problem is contrary to the moral intuitions of most people. There, the healthy person must be killed directly as compared to the Trolley Problem where the death of the individual is “only” brought about by the changing of a switch – an indirect killing. The H ­ ospital Problem thus urges Utilitarians to find a more satisfying solution that is consistent with moral intuitions. Accordingly, John Stuart Mill takes rights seriously in his book Utilitarianism. He accepts that society should protect certain interests of the individual, which presumes that society should recognize subjective rights. But according to Mill, it is only common usefulness which delivers the reason for recognizing subjective rights. In other words, rights are derived from their common usefulness to society or their capacity to create happiness in society. The advantage for those who enjoy rights is thus only a side effect. The bearers of the right are not the focus of the reason of why they bear rights. This shows that the Utilitarian approach is not able to appreciate the status of any single individual person as a bearer of absolute human rights. The benefit to society or the majority, or any other abstract concept (majority) beyond the single person, is the relevant benchmark for good and evil and not the human person. These short remarks seems to me to be enough to show that neither the Hedonist nor the Utilitarian approach can, in any case, deliver an adequate, comprehensive foundation for human rights. Nevertheless, for the contemporary discussion of human rights, it is very important to note the huge influence about the Utilitarian approach. This is confirmed by a very special thought experiment.

31 2.2 · The Aristotelian Approach

The German play writer Ferdinand von Schirach wrote the theatre play “Terror.” The story is as follows: There is a trial against the military pilot Lars Koch. He is accused of murder. A terrorist had hijacked a passenger plane headed from Berlin to Munich with 164 people aboard. As the plane got within 15 km of its probably intended target, a football stadium filled with 70,000 people, Major Koch decided to shoot the plane down with an air-to-air missile to save the lives of the people in the stadium. The passengers aboard the plane are all killed. The audience of the theatre is then asked whether the pilot should be sentenced for his actions. The play was performed in many places around the world. A website reports the answers given by audiences from all over the world (7 http://terror.­ theater/). The reports show that an average of 63% of audiences vote “not guilty.” Comparatively, when the film “Terror” was broadcasted on German television in 2016, the result of the same inquiry was an average of 87% of audiences voting “not guilty”. The variance between the two averages indicates that moral feeling all over the world is ­seemingly steered by Utilitarian ideas. They think of the numbers of victims and not of the human right to live of the passengers. But it is certainly not the case that these people undervalue human rights. The more likely explanation is that they have a very vague concept of human rights.  

2.2

The Aristotelian Approach

The label “Aristotelian approach” stands here for a great multitude of different moral theories, which have, however, important characteristics in common. Aristotle is the famous ancient Greek philosopher who gave theories of this kind a very sophisticated shape. His philosophy thus had a huge influence on other similar approaches. This is why I call all these different approaches the Aristotelian approach. In reality, the Aristotelian approach is only a very clear example of patterns that we find in every culture around the world. So, I use the expression “Aristotelian approach” as the name of that very pattern. At first glance, the Aristotelian approach seems a good candidate for a foundation of human rights. His approach accepts obligations toward each other and it is compatible with the idea of mutual rights, although neither in Aristotle’s work nor in any other classical variant of this

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“Political Entities”

Public Opinion

Teleology

Natural Law

approach are subjective rights recognized. Above all, the Aristotelian approach seems to be adequate because of its universal commonness. The Aristotelian approach is characterized by the following features: (1) Human individuals are considered “political entities.” The idea that human beings are political entities means that human individuals are not subjects for themselves. They are not “ends in itself ” (Kant). Rather, they are only elements and parts of a political community. As citizens, they have to work for the common good. Only as private men (Greek: idiotes) can they pursue their own private interests. The private sphere is the family and the household. It is organized in a patriarchal manner. The father is the owner of the household and family. Spouses, children, and servants are like the animals, the house, and the ground – all of which are the property of the father. The public sphere is the sphere of politics. In this sphere, men are equal citizens. So, the meaning of life for spouses, children, servants, and ­animals is to serve the house (oikos) and the father in the private sphere while the meaning of life of the father is to serve the community in the public sphere as an equal among equals. (2) The second element of the classical Aristotelian approach is the responsibility toward the public opinion and not toward individual reason and conscience. The standard of morality is the public opinion. This includes standards of political or judicial action. Here, the majority decides what is right and wrong. The opinion of the single individual is only relevant in the process of forming opinions. But when the people (demos) have voted, the meaning of the majority is not only the most powerful one. Rather, it is considered as the only true one. This is why rational opposition against the majority is unthinkable. (3) The third element is the teleological view of the world (cosmos). Aristotelianism is based on teleological metaphysics. According to this idea, every element of nature including humans, society, and culture, has a certain aim (telos) that is inscribed in it by nature. In the same way as it is the natural aim of an apple tree to produce apples, it is the aim of humans to serve the community and to live in accordance to certain moral standards. (4) The teleological approach led to the idea of natural law of morals. According to this idea, it is not only a fact that apple trees produce apples, but it is their duty to produce apples. A tree that does not produce apples is there-

33 2.2 · The Aristotelian Approach

fore bad not only in a functional sense but in a moral sense. The idea of natural law of morals was first developed by the Greek philosophy of the Stoa. Islamic and Christian philosophers and theologians took over this idea. It was first the Andalusian Islamic philosopher Ibn Rushd, also known as Averoes in the West, who systematically explored the work of Aristotle, translating it into Arabian language and establishing an Islamic philosophy on the basis of the Aristotelian ideas. The influence of Ibn Rushd for the Islamic world was, however, very small. His Rationalism clashed against the religious thinking of mainstream Islam outside of Europe. He was considered a heretic. The collapse of the Andalusian Caliphate in 1031 and the final surrender of the Emirate of Cordoba in 1492 finished his influence in the Islamic world. Nevertheless, his influence in the western world was groundbreaking. He brought the knowledge of the work of Aristotle to the West and it was in particular Thomas Aquinas who established the philosophy of Aristotle as the basis of western theological thinking. Ibn Rushd’s Rationalism developed further into the beginning of scientific thinking in Western Europe. The main change in the Aristotelian approach that the Islamic and Christian philosophers made related to the ideas of the source of natural moral law. According to the Stoa, natural moral law was considered similar to how contemporary man understands laws of nature as within the meaning of physics and other empirical sciences. Nevertheless, the modern distinction between the laws of nature and moral laws was only possible through the distinction that philosophers and theologians have made in the Middle Ages. For them, the source of moral laws was no longer the nature as such but rather the personal will of God. God was considered a personal entity that issues commandments which human beings were obliged to follow. The theologian modification of the Aristotelian approach led to some changes in the conception of the relationship of individual and society. But the structure remained the same. (1) Human individuals were considered “subjects of God.” The society was considered a cooperation that had to serve God. The idea remained that human individuals were considered only elements and parts of a political community. But the structure of the society (Islamic:

Islam Christendom

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The Will of God

Devine Law

Aristotelianism Today

Ummah) was no longer considered as a natural structure, but one based on divine rule. (2) Furthermore, the theological approach differs from the classical Aristotelian approach by the reference to the authority toward whom there is a moral responsibility. The driver is no longer the public opinion but the will of God – that is, the moral rules issued by God. The class of priests and similar religious agents have the capacity and power to interpret the divine rules. Democracy is replaced by a hierarchical structure. On the top is a king whose legitimacy is derived from the will of God. The individual is only a subject of his power. The decision of the king, when it is in accordance with the opinion of the religious leaders, is not only the most p ­ owerful one. It is the only true one. (3) The theologian approach can also be interpreted as a teleological approach. Nevertheless, is it not one’s nature which defines the aims of life; God defines the aims of life. Every individual, however, has a certain aim or telos that is inscribed in it. It remains the aim of humans to serve the community and to live in accordance to certain divine moral standards. (4) The idea of natural law is converted into the idea of divine law. But the content is more or less the same. It is crucial to note that in this structure the individual only has a serving position and role. It does not possess rights. It is further necessary to mention that the theological approach in the Islamic world led to very similar results despite ignoring the Aristotelian heritage. The reason for this is easy to understand. Aristotle did not develop a new conception of the relationship between society and individual. He only interpreted the given social structure of his culture in a philosophical manner. He gripped the world, which he encountered, with words. The structure and manner of thinking that he had about the world, however, is a variation of a pattern that you can find in every traditional society around the world. The Aristotelian approach is still alive. Nowadays, it is very often expressed with vocabulary that was not common in ancient Greece or in the Middle Ages or in any traditional society. Still, this modern vocabulary is used to express very old ideas. You can find papers and books defending the Aristotelian approach by using phrases like “human rights” or “human dignity.” Human rights or human dignity in this sense partly refer to a certain kind of freedom and partly to a certain kind of duties. Freedom

35 2.2 · The Aristotelian Approach

is meant as freedom from any obstacles which could hinder the pursuit of the natural aims of a human being. It is the freedom to meet your duties and nothing else. For example, because it is the natural aim of a woman to give birth to children, or the divine will that she do so, women have the human right to not be hindered from marrying and begetting children. On the other side, if a woman decides not to marry and/or beget children (or not to get more children), then she pursues aims that are contrary to the law of nature or to the will of God. Therefore, she not only has no human right to act as she has decided to do, but according to the natural or the divine law, she is obliged to abandon pursuing her own plans. It is further similarly permitted that be forced to marry or beget (more) children, etc. This concept of human rights is thus more accurately characterized as a concept of human duties. Put differently, every human has certain rights but he/she will forfeit these rights if he/she acts contrary to his/her natural aims. An example for this modern variant of the Aristotelian Approach is Miklós Maróth’s paper about “Human Dignity in the Islamic World.” According to the author, the elevated position of humans, as compared with that of the angels, is based on free will. God has endowed humans with free will and “in turn” he charged them with duties. If a man obeys Allah’s commandments, he will be dignified and receive benefits, otherwise he will be punished. The author concedes that the word “human dignity” was not known in the times when Islam was founded and the Quran was written. Nevertheless, he uses this expression in order to explain very old religious ideas with modern words. A Christian variation of this approach is the book Persons. The Difference between “Someone” and “Something” by Robert Spaemann. Spaemann recognizes that the essential characteristic of persons is to be able to decide between Good and Evil. They are also able to recognize what is the Good. But they have in themselves no reason to act according to the Good. He writes:

»» If there is no God, everything is permitted. The content

of morality is not accessible without faith. But what remains incomprehensible without any religious belief, is why we should do what we have recognized as the best, contrary to our own important interests. There is no responsibility toward ourselves. Responsibility seems

Example 1

Example 2

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inconceivable if there is not someone toward whom it is a responsibility.” (p 106, German edition).

2

Example 3

Be/Ought Confusion

Another example of the Aristotelian approach is the socalled Capability Approach of the American philosopher Martha Nussbaum. She starts neither from the traditional morality of a given society nor from the will of God, but from an intuitive anthropological approach that concerns itself with the basic human capabilities that are crucial for being a human being. One of these basic c­ apabilities is, for example, the awareness of corporeality. From this capability follows the capability to eat or to fast. Human beings are therefore endowed with the right to choose between eating and fasting. It is a violation of their rights if they are deprived from this choice – as is the case of starving. Here we again find a teleological thinking. Nussbaum concludes from the natural capability of eating or omitting to eat a right to food and a right to fast according to one’s own free will. Regardless of which variant of the Aristotelian approach we consider, none of them are convincing when it comes to identifying an adequate philosophical basis for human rights. This can be shown by a deeper analysis. The most relevant counter-argument against every conception of natural law is the fact that they confuse the meaning of “be” and “ought”. Assuming that everything in nature has an inherent aim, it does not follow that something or someone has the duty to follow its aim. A natural tendency is a simple fact, something that we describe with the word “be.” The natural tendency for apples to emerge from apple trees is only a fact in this sense. This does not entail that apple trees have an obligation to produce apples. In contrary, the word “ought” is used not when talking about natural tendencies but about free decisions between alternatives. Duties, obligations, or statements with “ought” can only play a role where we have to face acts based on the ability to not only follow natural tendencies, but also to refuse to follow such tendencies and act contrary to them. Where such abilities are exercised, we talk about free will. Free will is based on the consideration of arguments and on a process of balancing of alternatives. This is a completely different procedure than is following natural tendencies. When we want to allege certain duties, we have to point to arguments in favor of such duties while at the same time indicating that the counter-arguments are less convincing. Natural-Law-theories are always based on

37 2.2 · The Aristotelian Approach

a conclusion from facts to norms, from descriptions to prescriptions. Nevertheless, conclusions of that kind are logically flawed. Inherent aims within the meaning of Aristotle, or capabilities within the meaning of Martha Nussbaum, are only facts. Aristotle as well as Nussbaum move from facts to norms, but such a conclusion is logically flawed. The gap between “is” and “ought” and the logical Hume’s Law impossibility of finding a norm from a fact was first addressed by the English philosopher David Hume (1711– 1776). It is called Hume’s Law. Very often, it is also called a naturalistic fallacy. This notion was coined by the British philosopher George Edward Moore (1873–1958), but it had a slightly different meaning originally. The theological modification of the natural law conception into a legality conception recognizes this counter-­ argument. It replaces natural facts through a divine rule. The divine rule is a norm and from this norm follows what we ought to do. Norm follow from norms. God is considered a legislator and human beings are considered the subjects of the divine law who are bound to it. The binding tie between a rule and a person is what we call an obligation or duty. So, at a first glance, we can see that the theological approach seems to avoid the naturalistic fallacy. But let us have a deeper view. What is the element that leads to the binding effect of the divine law? The answer of the Qur’an, for example, includes a reference to punishment by God. Nevertheless, punishment is only a matter of facts. We have to once again ask how it should be possible to conclude the existence of an obligation from a crude fact. It is important to see that the threat of punishment is never an argument in favor of duties. Finding otherwise, we would be obliged to give our wallet to a robber when he threatens us with a knife. If we were to think that we are obliged to give our wallets to the robber only because he forces us to do so, we would inadvertently recognize that the robber has a right to get our wallets. In other words, we would consider crude violence as the source of rights. This is obviously nonsense. Therefore, force can never give rise to duties and obligations. From this insight follows that we can never be obliged to follow the commandments of God simply because God threatens us with punishment. It might be strategically smart to follow the commandments of God in order to avoid punishment. Nevertheless, this would be

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2 Meaning of Life

analogous to the case when we decide to follow the demands of a robber in order to avoid severe harm. Accordingly, duties and obligations, or rules in general, do not find a valid basis in natural tendencies or divine penalty or any other kind of violence. So, we need alternative reasons to underlie the validity of norms. There is a more sophisticated argument in favor of the possibility of deriving norms from natural tendencies. This is the argument of the meaning of life which follows from the teleological view of nature. Importantly, meaning of life is to be distinguished from meaning in life. Meaning in life refers to the aims and targets that we choose on the basis of our own free will. If you have decided to become a lawyer, you will read certain books, visit certain lectures, meet certain people, pass certain exams, etc. All these activities are directed to one aim, namely the aim of becoming a lawyer. Becoming a lawyer is one of your possible meanings in life. The concept of meaning of life means something different. It means that your entire life, your existence as a whole, serves a certain purpose beyond your life. If such a meaning of life exists, it would be prudent to orientate your life in that direction. But, can such a meaning beyond your life exist? According to Aristotle, citizens must serve the benefit of the community. Aristotle considers the benefit of the community to be an aim beyond the life of the individual citizen. But beware: Aristotle does not argue that we should serve the benefit of the community because benefitting the community is in fact tantamount to benefitting its members. In other words, Aristotle did not believe that we serve our own benefit when we serve the benefit of the community. Instead, he thought that the ultimate aim is the benefit of the community and not the benefits of its members. The benefits of its members were considered only contingent side-effects rather than the meaning of serving the benefit of the community. This is why citizens can be obliged to sacrifice their lives for the benefit of the community. Nevertheless, we have to realize that from the view of the citizen it makes no sense to serve the benefit of the community if the community as such does not have a meaning for itself. This must be a meaning and purpose beyond the benefit of the community. If the existence of the community does not have some further meaning, then, of course, serving the community is also meaningless. But

39 2.2 · The Aristotelian Approach

what could be the meaning of life of the community? Aristotle and the philosophers of the Stoa would answer that the meaning of life of a community is to follow the cosmological order. On this step the same question occurs: Serving the ­cosmological order only makes sense if there is a meaning beyond the cosmological order, which the cosmological order then serves. The ancient Greek philosophers didn’t ask this question and therefore their entire approach shows severe deficiencies. The theologians of the Middle Ages  – both Islamic and Christian – delivered an answer to the question posed above. The meaning of the entire cosmological order or, in other words, the meaning of creation is the satisfaction of God. Nature serves the benefit of God. The community serves the benefit of nature. The citizen serves the benefit of the community. The first link in the chain is connected with the last link in the chain. By serving the benefit of the community, the citizen ultimately serves the benefit of God. Accordingly, there is a meaning of life for every individual. Nevertheless, this conclusion is short-circuited. The benefit of God ensures a meaning of life for human individuals only if there is a meaning beyond the benefit of God. So we have to ask whether there is a purpose of life for God. Thus, it is now evident that this structure of argumentation cannot lead to a final result. This structure of argumentation leads to an infinite regress. This shows that the concept of meaning of life is based on a confusion of thought. There is no meaning of life. If we give up the idea of meaning of life, we give up at the same time the idea of a teleological view of nature. If we refuse the idea of a teleological view of nature, we have at the same time lost the basis of the idea of the human being as a political entity and the idea of responsibility toward the public opinion. There is nothing beyond individual reason and conscience that could provide a basis for the political order and justice and moral or legal compulsoriness among human beings. Please, be aware of the character of my argumentation against the Aristotelian approach and its theological modifications. I do not argue from an empirical point of view. I do not opine that natural law does not exist or that God does not exist or that God does not issue laws, etc. In other words, I do not criticize religious or metaphysical beliefs from an external point of view. I do not confront religious

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belief with an atheistic belief, etc. My argumentation is only based on logic. It is an internal criticism against some conclusions of metaphysical or religious beliefs which are contrary to logic. Having identified these logical inconsistencies, however, does not exclude that there is an ­acceptable basis for religious or metaphysical beliefs in general.

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2.3

Methodological Individualism

Requirements for an Adequate Theory of Foundation

From the criticism against the Hedonist, Utilitarian, and Aristotelian approaches, we can learn something about the requirements that an adequate theory of foundation of human rights must have. There are two fundamental requirements: (1) Methodological Individualism. Foundation theories serve as justifications for human rights. Any argumentation in favor of the foundation of human rights must always be addressed to an entity that is considered the source of justification. When identifying this source it is necessary to avoid both the naturalistic fallacy and an infinite regress. Nevertheless the entity of justification must provide a last reference i.e. a final and stable ground. This entity must be able to assimilate or digest rational arguments. In other words, the entity of justification must be endowed with rationality or reason. Rational arguments are always aligned with a final purpose. These final purposes are what we can call the meaning in life. They are the standards of orientation for rational operations. The entity of justification must therefore be endowed with the ability to establish a structure of meaning in life in order to setup a system of standards of orientation for rational operations. This ability is called conscience. In other words, entities of justification must be endowed with conscience as well. The only entity in the world that is endowed with reason and conscience is the individual human person. From this follows that every kind of ascription or justification of obligations must be acceptable for every single human individual. Every individual person can only approve arguments for themselves. It is not possible to only select some individuals as representatives for the entirety of mankind. It is

41 2.3 · Requirements for an Adequate Theory of Foundation

rather unavoidable that every single human individual approves the norm order. Therefore, it is never enough to show that the norm order serves the benefit of the community or the benefit of God or the greatest happiness of the greatest number. Instead, it is necessary to show that every single person has good reasons to accept the norm in question because the norm is useful for her in order to pursue her own meaning in life. (2) From Methodological Individualism follows what we call Normative Individualism. Recognizing that justifying a norm order depends on the individual ability of reason and conscience, it is unthinkable that human individuals accept a norm order which does not protect their reason and conscience or does not recognize or otherwise disregards the individual’s competences of reason and conscience. Regardless of the norm order that is ultimately accepted by prospective individuals, one set of normative elements must always be present, namely basic norms that protect the individual’s reason and conscience. Norms of that kind are called human rights. Human Rights are nothing else than the totality of all conditions that must be met in order to ensure the conditions of reason and conscience. Human rights must protect the core of the human individual as the last and highest reference point of every legal order. ??Do you still remember? 2.1 Why is the Utilitarian approach not compatible with the idea of subjective rights? 2.2 What is meant by Naturalistic Fallacy? 2.3 What is the crucial argument against an ethical theory based on teleological metaphysics? 2.4 What is meant by Methodological / Normative Individualism?

For the answers, see 7 Chap. 21.  

Reading Recommendations Abed Al-Jabri, Mohammed: Arabic Islamic Philosophy. A Contemporary Critique. Austin: University of Texas Press 1999. Anscombe, Gertrude Elisabeth Margarete: Modern Philosophy. In: Philosophy 33 (1958), 1–19. https://www.­pitt.­edu/~mthompso/ readings/mmp.­pdf Feldman, Fred: Utilitarianism, Hedonism, and Desert: Essays in Moral Philosophy. Cambridge (UK) 1997.

Normative Individualism

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Frankena, W.  K.: The Naturalistic Fallacy, in: Mind. XLVIII (1939) 464–77. Maróth, Miklós: Human Dignity in the Islamic World. In: Markus Düwell et  al: The Cambridge Handbook of Human Dignity, Cambridge (UK) 2014. Mill, John Stuart: Utilitarism, 4th ed. 1871, Google Books. Nathanson, Stephen: Act and Rule Utilitarism. In Internet Encyclopedia of Philosophy. http://www.­iep.­utm.­edu/util-a-r/ Nussbaum, Martha: Creating Capabilities. The Human Development Approach. Cambridge (Mass) 2011. Singer, Peter: Practical Ethics. Cambridge (UK), 3rd edition, 2011. Spaemann, Robert: Persons. The Difference between ‘Someone’ and ‘Something’. Oxford 2007. Taurek, John: Should the Number Count? In: Philosophy & Public Affairs 6 (1977), 293.

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The Social Contract Approach Contents 3.1

The Theory of Social Contract – 46

3.2

Thomas Hobbes – 47

3.3

John Locke – 50

3.4

Jean-Jacques Rousseau – 54

3.5

John Rawls – 57

3.6

 hy Social Contract Theories W Cannot Serve as a Foundation for Human Rights – 60

3.7

A New Approach After World War II – 62 Reading Recommendations – 63

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_3

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Social Contract Theories

3

Social contract theories always consist of three elements: (1) individualism, (2) contractual autonomy, and (3) a certain conception of a natural state (Rawls: original position). Individualism refers to the fact that only human individuals, as opposed to collectives, can be considered parties of the original social contract. Contractual autonomy refers to the ability of human individuals to give up individual freedom by binding themselves, by making promises, and by entering a contract. Natural state (original position) refers to the idea of a state of life before the social contract has been concluded. This situation explains why individuals are rationally motivated to enter a contract. The natural state is not a real historic state, but only a contra-factual story in the frame of a thought experiment. The different social-state-theories differ from each other in their respective descriptions of the natural state.

The Social Contract Theory of Thomas Hobbes (1588–1679) Hobbes describes the natural state in terms of human individuals devoid of any sense of sociality and emotional, moral, or legal ties to each other. They are lonesome, selfish agents who distrust each other and are always fighting against each other. In such a situation, human beings are driven by self-preservation to enter into social contracts. For this reason, they mutually renounce the exercise of self-determination in a social contract. Only the king is not part of the contract. Therefore, the king is the only one who is able to determine himself. This brings him to the position of sovereign ruler over all other individuals of a society who in turn become his subjects. Recognizing that the judicial ties between the subjects only relates to the mutual renunciation of self-determination, there is then no positive right of the subjects toward each other or toward the king. Therefore, the Hobbesian conception of the social contract does not provide any foundation or justification for human rights.

45 Chapter 3 · The Social Contract Approach

The Social Contract Theory of John Locke (1632–1704) According to Locke, human individuals in the natural state are endowed with human rights. Human rights are considered part of their nature as created by God. The rights are vague and therefore a matter of interpretation. The fact that every individual has the right to interpret its own rights leads to partisan interpretations and misuse. Therefore, individuals have good reasons for establishing a public authority with a monopoly over the interpretation of rights and the power to protect or enforce them. The establishing of such an authority is the content of the social contract. The Lockesian approach allows two different interpretations. According to the first interpretation, human rights are considered part of the human nature. This approach is not an adequate justification for human rights because it is based on a naturalistic fallacy. According to the second interpretation, human rights are enacted by God who is considered a legislator. This argumentation leads to an infinite regress because God as legislator needs legitimation.

The Social Contract Theory of Jean Jacques Rousseau (1712–1778) According to Rousseau, the natural state was a real era in history. It was characterized by very small groups of individuals who were closely connected through ties of love and affection. This “golden age” came to be through the invention of agriculture and private property. The natural state thus became a state that was characterized by inequality and economical expropriation. Individuals enter into social contracts to avoid inequality through equal political participation. According to the contract, the state is ruled by the volonté general, which consists of the unanimous vote of all members in society. In practice, however, the requirement of unanimity leads to the complete inability to act. Therefore, in practice, majority votes rule and the majority is able to oppress minorities.

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The Social Contract Theory of John Rawls (1921–2002) According to Rawls, the original position is characterized through a society whose members want to enter a social contract to establish rules for a fair distribution of the benefits and burdens of their cooperation. Human individuals share a conservative, careful attitude toward unpredictable risks (MaxiMinPrinciple). Individuals vote only for fair principles of distribution if they have to vote behind a veil of ignorance  – i.e., under uncertainty about their own future position in society. Behind the veil of ignorance, people vote for the liberty principle, the difference principle, and the principle of equal access to privileged positions. The liberty principle refers to the maximum of liberty that is only restricted by the same amount of liberty that any other member of society enjoys. Rawls considers the content of liberty more or less identical to the catalogue of classic human rights. The differenceprinciple demands that social and economic inequalities are arranged so as to be of the greatest benefit to the least-advantaged members of society, thus placing the least-advantaged members of society in a better position than would be the case in any other kind of distribution. The principle of equal access demands equal opportunity for every member of society to achieve privileged social and economic positions within society. The conception of John Rawls is an inadequate justification for human rights because it justifies rights only for the members of a given society without providing reasons that support a right to access that society. Rawls’ theory refers therefore only to civil rights and not to human rights.

3

3.1

The Theory of Social Contract

As we have seen in the last lesson, the philosophical foundation for human rights can neither be based on the Utilitarian approach nor on the Aristotelian approach because both approaches are not based on the two principles of Methodological Individualism and Normative Individualism. The social contract approach, however, is based on these two principles. Therefore, we must investi-

47 3.2 · Thomas Hobbes

gate whether the social contract approach is an adequate candidate for the foundation of human rights. The social contract approach is strongly represented in Anglo-Saxon political philosophy. The idea rose in the beginning of the European Renaissance and was first formulated by the English philosopher Thomas Hobbes (1588–1679). Perhaps you know that some philosophers of the Middle Ages have already argued in favor of the idea of a social contract (Marsilius of Padua, Althusius). The idea of these philosophers was that the legitimization of royal power is based on a contract between the people and the king according to which there is a mutual relationship of trust and loyalty between the two. The people, as an original corporate entity, was considered one of the parties to the contract. This was an idea in the frame of the Aristotelian approach because individuals didn’t play any role in this conception. In the frame of the modern idea of social contract, “the people” or the community is not considered an original agent. According to the principles of Normative Individualism, society is built of individuals and the individuals are the very agents and parties of the contract. The community – we should prefer to speak of “society” – is only established through the social contract. Society is the result of the contract rather than simply one of the contracting parties.

3.2

Social Contract in Middle Ages

Thomas Hobbes

Thomas Hobbes was the first representative of the modern idea of the social contract. Although his conception of the social contract is very different from later conceptions, we can identify in Hobbes three elements which are typical for every theory of social contract. The first element is what we can call Individualism. Let us briefly go over what Individualism is. Individualism is the idea that the individual is no longer seen as merely a dependent part of the community, intended only to serve the purposes of the community. Instead, the individual is seen as self-centered – not necessarily, but probably selfish – entity that is interested only in maximizing its own goods. The value of the individual depends neither from its use for the community nor its use for his fellow individuals. Value depends only from the relation of the indi-

Individualism

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3 Autonomy

Natural State

vidual to itself. Individuals are not bound by nature or by God to a meaning or purpose beyond such meaning and instead freely choose their own purposes. There is for them no obligation by nature or by God. So, they can be bound to obligations only by self-binding, based on consent. The foundation of moral or juridical liability can, if at all, only be created by the individuals themselves. The second element of the theory of social contract is what we call Contractual Autonomy. Contractual autonomy refers to the ability to give up individual freedom by making a promise and entering into a contract. What is the actual difference between a promise and a contract? The crucial criteria is that promises are only self-­ obligations. That is to say, the individual who makes a promise obliges itself toward itself. Not every promise is a contract, but every contract is a promise. A contract is a kind of promise that is connected to the conferring of a right to the beneficiary of the promise. When we confer a right, we endow someone with the moral power to demand the fulfillment of our promise and to sanction the breach of the promise. Contrary to a promise, a contract sets up not only a responsibility toward oneself but also toward the partner of the contract. The third element of the social contract approach is the idea of what may be called Natural State. Theories of social contract always begin with the idea of a state of life before contract has been entered. This situation is traditionally called Natural State. John Rawls replaced this expression by the term Original Position. This term has the advantage of avoiding the imagery of the former term. It makes clear that this element of the social contract theory does not refer to a historic state in the past, but to an element in a thought experiment. Accordingly, neither the Original Position nor the social contract should be considered real facts in history. It is, however, not clear whether Hobbes understood his own argumentation as a thought experiment or as a series of claims about certain historical events. But, we should be aware that we are not talking about historical events, but about a philosophical thought experiment. The differences between the particular theories of social contract are differences in the descriptions of the natural state, i.e., the original position. According to Hobbes, the natural state is characterized through human individuals without any ability or sense for sociality (see . Fig.  3.1). They are not connected to  

49 3.2 · Thomas Hobbes

Thomas Hobbes (1588 – 1679) Leviathan or the Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil, 1651 Natural State: - Egoistic antisocial individuals - War all against all - Self-preservation at risk Solution: - Mutual renunciation of self-determination by contract - One person is excluded from the contract: the king - Absolute power of the king over his subjects ..      Fig. 3.1  Hobbes’ conception

each other by emotional, moral, or legal ties. They are lonesome, selfish agents who distrust each other and are always fighting for the scarce resources necessary for survival. The natural state endangers their interest in self-­ preservation and, therefore, the individuals want to end it. They want to bring themselves into a state of peace and security. In order to conclude the natural state, the individuals mutually renounce the exercise of self-determination. They take only one person out of this mutual renunciation, namely the king. The king is not a party to the contract and remains in the natural state. He can make determinations not just about himself but also all others because he is the only one who has not renounced his self-­ determination. As a result, the king becomes the owner of sovereign rule. Sovereignty and legitimacy of state power is not based on law or morality, but rather solely on the subjects’ renunciation of self-determination and the will of the king to rule over all his subjects for the sake of his own interests. The only benefit of this kind of social contract is the absence of war where everybody fights against everybody. There is no moral or juridical relation between the subjects and the king; the only relations are between the subjects themselves. The judicial tie between the subjects only relates back to the mutual renunciation of self-­ determination. The subjects do not have a positive right toward each other or toward the king. So, the Hobbesian conception of social contract does not deliver any foundation or justification for human rights.

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3.3

3

John Locke

Human rights come into view if we turn to the contract-­ theory of John Locke. Like in the theory of Thomas Hobbes, we find with Locke the three elements of every social contract theory: individualism, contractual autonomy, and a conception of the natural state. Nevertheless, the design of natural state is quite different. Like with Hobbes, the individuals are considered isolated beings without any social ties. But contrary to Hobbes, they are endowed with human rights. Human rights are particular entitlements that each individual has toward every other individual. The human rights are conferred by God and can be analyzed in three elements (see . Fig. 3.2): (1) They have a particular scope of protection, namely life, freedom, and property. Accordingly, there are three different human rights. The right to freedom is, however, subdivided into particular different freedoms. The most important one is the freedom of religion. Another one is the freedom to free trade and business. (2) All human rights embrace the right to defense oneself and, if necessary, by means of violence. Locke called these means of violence punishment. In other words, every bearer of a human right is authorized by God to punish those who violate or threat to violate his rights.  

Protection Scope

Right to Defense

John Locke (1632 – 1704) Second Treatise of Government, 1689 Natural State: - Individuals endowed with human rights by God - Individual right to sanction - Right to interpretation - Risk of failed interpretation → - Misuse of sanction Solution: - Establishing a state by contract - Communization of interpretation of the Human Rights - Communization of sanctioning ..      Fig. 3.2  Locke’s conception

51 3.3 · John Locke

(3) Human rights are a subject of interpretation. They are not very clear. For some situations, it is questionable whether they are even applicable. The bearer of the right, however, is endowed by God with the authority to give the authoritative interpretation. From the individual right to interpret one’s own human rights in situations in which the individual itself is involved follows that the individual’s interpretation of the right is influenced through partisan interests. Therefore, the individual interpretation is always at risk of being distorted and made false. False interpretation of human rights lead to the risk that the right to punishment will be misused. The individual could defend a right that it does not actually hold. So, a significant high risk of unjustified violence is an essential element of the natural state. In order to avoid these risks, it is a seemingly reasonable option for the individuals to enter a social contract with the aim of establishing a state and transferring to this state the individual right to interpretation and the individual right to punishment. In doing so, the state becomes the central authority, endowed by the people (here: by every member of the society!) with the sole competence of jurisdiction over the interpretation of the rights of citizens and a monopoly over legal violence. The communization of interpretation and punishment further leads to a positive side-effect: the individual is not limited by its own weak forces, but can use the combined forces of society to protect its rights. So, the defense of everyone’s human rights is much more effective than is the case in the natural state. It is important to see that, according to Locke, the social contract is not the foundation of human rights. The foundation of human rights is the will of God, who has endowed his human creations with certain human rights. The only function of the social contract is to compensate some deficiencies of the divine gift in order to avoid injustice in the application of human rights. The Lockean conception was the paradigm of constitutional law in the United States of America. We can see that very clearly in Section 1 of the first American constitution, the Virginia Bill of Rights of 12 June 1776 (see . Fig. 3.3). In particular, the first section of this constitution deals with human rights while the other sections deal with the organization of state power. Only two other articles could be recognized as referring to human rights,  

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Right to Interpretation

Constitutional Law

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That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. ..      Fig. 3.3  Virginia Bill of Rights Section 1

namely freedom of the press under section 12 and freedom of religion under section 16. In contrast to Locke, Section 1 of the Virginia Bill of Rights does not trace human rights back to the will of God, but to “nature.” Nevertheless, this is not really a contrast to Locke. The drafters of the Virginian constitution shared Locke’s view that “nature” is the creation of God. By nature means, therefore, that human rights are inherent in the same manner as reason and conscience are inherent to human beings. Human rights are part of humans’ natural constitution in accordance with the master plan of God’s creation. Another point is also important to note. Section 1 stresses the fact that human rights cannot be deprived or divested by contract (=compact). They are not something that can be disposed of by humans because they are inalienable and irrevocable. It is also not possible to renounce them or otherwise deprive others of them. Both irrevocability and inalienability are unconditional. As long as human beings exist, they are endowed with human rights just as they are endowed with reason and conscience. Nevertheless, the consequences of that statement were not clear to the drafters of the Virginian constitution, nor are they clear to many contemporaries. So, there is still a lot of people who have not noticed that the attributes of irrevocability and inalienability are not compatible with, for example, the death penalty or the torture of terrorists and criminals. We will return later to this aspect. The Lockean approach leads again to the problem we have dealt with in the second lesson. Human rights are norms and not facts. So, it is a kind of naturalistic fallacy to consider human rights natural attributes of human beings like reason or conscience. Nevertheless, we can interpret Locke in a way that avoids this naturalistic fallacy. We can justify human rights not as the result of divine creation of facts, but as the

53 3.3 · John Locke

result of a divine legislation. By doing so, we could say that God is a legislator who can enact laws. In this case, we analogize the relation between God and human rights to the relation between the national parliament and the national laws that are enacted by the parliament. Many critics argue against this construction on the grounds that it is based on a certain religious belief and that religious beliefs cannot be reasonably justified. Religious foundations of human rights would lead to the result that atheists or believers of other religions could not be convinced and motivated to respect human rights. I think the question of whether religion can be justified in a reasonable way is a very difficult and arguable ­question. Furthermore, I believe that religious justification of human rights is a matter of theology and not a matter of philosophy. This lecture is a philosophical one and not a theological one. Therefore, religious justification or foundation is not our business. Indeed, the question of religious truth is not really relevant for our purposes. We can avoid this question simply by acknowledging that even if we are willing to take as a fact that God exists and that God issues laws for humans, we nevertheless do not have a stable basis and foundation for human rights by referring to the legislation of God. If we accept that God issues laws and demands that we should obey them, then the question arises, why should the laws of God be valid and binding. As we have seen in the last lesson, the threat of punishment cannot provide a basis for the validity of laws. The only way to justify the validity of divine laws is to show that God is endowed with the legal competence to issue laws for humans. Nevertheless, God’s position as legislator must also be justified. An adequate justification must consist in showing that the legal competence to issue laws is conferred to God by someone else who has a higher rank then God insofar as she has the legal competence to confer the competence of issuing laws for humans to God. The question is not whether such a legislator of higher rank exists. The problem is rather that we are confronted with an infinite regress because every legislator of whatever high rank so may only justifiably issue laws and confer legal competences on another if there is a higher ranked agent who endows him with that very competence. This problem shows that the Lockean theory of social contract remains within the frame of the Aristotelian Approach and, therefore, is not really an appropriate alternative.

God’s legislation

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3.4

3

Jean-Jacques Rousseau

Now I want to continue to examine the different variations of social contract theories in order to find out their relevance for the foundation of human rights. I move to Jean-Jacques Rousseau. Like with Thomas Hobbes and John Locke, we find in the theory of Jean-Jacques Rousseau the three elements of every social contract theory: individualism, contractual autonomy, and a conception of the natural state. The design of the natural state in Rousseau is quite different to those of Hobbes and Locke (see . Fig.  3.4). According to Rousseau, the natural state is the ideal state of freedom and happiness. There would be no motivation to escape from the natural state. He considers the natural state a situation where human individuals are living in small groups or families on the basis of love and affection. They are free and can live in accordance with their fundamental needs. According to Rousseau, however, it is a historical fact that mankind has been driven out of the paradise of the natural state. They are now living in larger societies. The reason for this development was the introduction of agriculture and the system of private property of land. The phenomenon of property led to the formation of social structures that are no longer based on love and affection, but on economical expropriation. This leads to different social classes of possessors and of those who have nothing and must therefore serve the former. Rousseau does not describe the natural state as a collection of separate individuals without any social ties. Rather, he describes it as a social state marked by strong  

Inequality

Jean Jacques Rousseau (1712 – 1778) Du Contract Social ou Principes du Droit Politique, 1762 Natural State (= lost paradise): - Economic inequality - Social inequality - Domination of the strong over the weak Solution: - Benefits (rights) as Positions of Equality - Establishing a state as defender of equality - Defense of equality through democratic procedures ..      Fig. 3.4  Rousseau’s conception

55 3.4 · Jean-Jacques Rousseau

inequality. This is a very new aspect. Both Hobbes and Locke only conceived of individuals as having equal economic and social positions. Both philosophers ignored the economic and social inequality of their time. They only had in mind the landowners and those who were economically independent. Rousseau, differently, reflects the huge inequality between the lower and upper classes during the time before the French Revolution. The strong inequality present in Rousseau’s work not only addresses the dichotomy between economic dependency and independency but also, as a result of this distinction, the huge inequality concerning the capacity for self-determination and autonomy. The state of inequality is a state where the natural freedom of human beings is infringed. We can now ask whether Rousseau’s conception could be adequately described in terms of rights. In the natural state, there are no rights but only natural freedom. There was no right to freedom, but rather humane living conditions that were characterized through freedom. In the state of inequality, the living conditions are no longer humane. They are, so to say, not species-appropriate. Human beings suffer from this situation and Rousseau asks for means to improve their situation. The social contract is the solution. According to Rousseau, the social contract serves the purpose of avoiding social inequality. Inequality is the source of the infringement of freedom. The abolition of inequality leads, therefore, to the restoration of natural freedom. Rousseau’s solution of the problem refers not to rights in the meaning of an absolute position of an obligee toward obligors, but rather as a matter of equalization of relative positions. Everybody should have the same social position in terms of access to freedom and benefits. In the Rousseauian frame, rights are not conceived of as super-positive norms. Instead, rights are always considered positive norms issued by a public legislator. This becomes particularly clear by the example of the right to property. Unlike Locke, Rousseau considers the right to property not the permission to retain what the bearer of the right has taken as a possession, but a right to take possession of what the state allocates. The citizen only has the right to equal allocation. In principle, the same idea is applicable to the right to life. The difference is only that the right to property can be quantified while the right to life cannot be quantified. So,

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3 Volonté Général

Criticism

if any member of society should have the right to life, everybody else should also have an equal right to life. If a member of society should not have the right to life – for example, because he is a murderer – then everybody else who is a murderer should also not have a right to life. In any case, rights are a question of equality and not a question of an absolute position. Rousseau applies the same idea to the question of self-­determination insofar as the social contract has the function of abolishing the domination of the stronger over the weaker. Every citizen should have equal influence and power. The government shall be an assembly of the people, where every citizen has the same voice and the same vote. Oppression is avoided because laws and political decisions come about only by the consent of all citizens. The sum of the individual wills (volonté de tous) becomes the general will of the society (volonté général). Justice and the protection of fundamental human interests, like the interest in life and freedom, are guaranteed not through rights, i.e., through the socially ­recognized and respected power to demand something from others, but through the procedure of making the volonté général. The ultimate legitimization of rules is the procedure of democratic emergence of the public will. This view is still relevant today. A prominent contemporary representative of this doctrine is Jürgen Habermas. The idea that human rights are simply a matter of equality and that equality can be guaranteed by democratic procedures of deliberation and legal or political decision making is not very convincing. The counter-­ arguments are as follows: (1) Rousseau’s idea of adequate procedure demands unanimity. Modern democracies operate with majorityvotes. This involves the opportunity for the majority to disregard the fundamental human interests of the minority. On the other side, it is not practicable to demand unanimity because this would lead to a parliament’s inability to act. (2) Equality is not a guarantee of the protection of fundamental human interests. It is possible for the majority of society to decide to avoid inequality by infringing certain fundamental interests. Let’s say that the majority decides that every girl should be circumcised. So, equal treatment is guaranteed because every person has to bear the same suffering. But it is obvious that female circumcision infringes a very basic human interest.

57 3.5 · John Rawls

Article 1 Men are born free and remain free and equal in rights. Social distinctions can be based only on public utility. Article 2 The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression. ..      Fig. 3.5  French Declaration of the Rights of Man and Citizens

You may want to argue that Rousseau was one of the most prominent thought leaders of the French revolution and that the French Revolution led to the French Declaration of the Rights of Man and Citizens of 1789, which encompasses more than just the right to equality (see . Fig. 3.5). Nevertheless, we must realize that the Declaration of 1789 was not only influenced by Rousseau, but also from the spirit of the American Revolution. The first two articles show these two influences. Article 1 stresses the principle of equality. Article 2 defines the aim and function of the state, namely, to preserve natural human rights. The catalogue of rights relates partly to Locke (liberty, property) and partly to Rousseau (security, resistance of oppression). The Rousseauian influence becomes clearer when we look at the mechanisms of the protection of rights. Until recently, it was not possible in France to appeal to the courts with regard to issues related to the protection of human rights. This was due to the idea that the democratic procedure of legislation already ensures that a violation of human rights cannot take place. Forensic rights protection was therefore considered superfluous.  

3.5

John Rawls

Now I want to move to John Rawls. In the nineteenth century and the first half of the twentieth century, there was no discourse of the social-contract-theory in philosophy or legal theory. It was only John Rawls who revitalized this conception in 1971 with his book A Theory of Justice (see . Fig.  3.6). Since then, social-contract-theory is on the agenda again. As with any other social-contract-theory, we find in Rawls a foundation of the theory on the conditions of individualism and contractual autonomy. The difference to other theories again concerns the description of the natural state, which Rawls calls the original position.  

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John Rawls (1921 – 2002) A Theory of Justice, 1971 Original Position (Natural state):

3

- Existing Society (Cooperation) - injustice and Inequality - MaxiMin-Principle - Veil of Ignorance Solution: - Liberty principle - difference principle - Fair equal access to privileged positions ..      Fig. 3.6 Rawls’conception

MaxiMin Principle

Rawls does not start from lonesome, unbound individuals. His starting point is an existing society, i.e. a certain social structure of cooperation. But this society is characterized by injustice and inequality. For Rawls, this situation is not acceptable because cooperation is based on contributions of all the participating individuals and, accordingly, must have benefits for all participating individuals. The distribution of the benefits and burdens of cooperation must be fair. The challenge of his theory of justice is therefore to determine the principles of a fair distribution of the benefits and burdens of cooperation. His conception is a conception of distributive justice. Rights in this context are things that are distributed by society and not something the individuals holds before they come to society. The distribution of benefits and burdens is based on fairness if all members of society agree with the principles of distribution or if they would agree when well informed and rationally thinking. In order to determine the fair principles of distribution, Rawls follows the so-called MaxiMin-Principle. The idea behind this principle is that individuals must choose the principles of distribution under conditions of uncertainty. They cannot calculate the probability of whether a certain principle of distribution will be advantageous or disadvantageous to them. For Rawls, individuals in the original position have a conservative, careful attitude toward unpredictable risks. Therefore, they will choose those principles of distribution which minimize the risks to them. That means they will

59 3.5 · John Rawls

prefer principles which guarantee them the best (maximum) of all bad (minimum) possibilities. They will, in other words, choose a strategy of risk-minimalization. A very important condition of the original position is that individuals have absolutely no idea about the chances that they will have in the constituted society to attain particular positions. They do not know their place in society; their class, position, and social status; their fortune in the distribution of natural assets and abilities; their strength, intelligence, etc. They also do not know about their own conceptions of the good or their special psychological propensities. Rawls calls this situation a position behind a veil of ignorance. The principles of justice are chosen behind the veil of ignorance. There are three principles that individuals would rationally choose behind the veil of ignorance: (1) The Liberty Principle. According to this principle, each person has an equal right to the most extensive basic liberty that is compatible with an equal liberty for others. Unlike material goods, liberty is not a scarce resource. So, it is possible to distribute a maximum or optimum amount of liberty to each individual. The only limit to liberty is the equal liberty of each other. Rawls shares the opinion that this scope of liberty is filled with the political liberty to vote and run for office, freedom of speech and assembly, liberty of conscience, freedom of personal property, and freedom from arbitrary arrest. So, the scope of equal liberty is more or less identical to the catalogue of the classic human rights. (2) The Difference Principle. The second principle of distribution they would choose is the principle according to which social and economic inequalities are to be arranged so that they are of the greatest benefit to the least-advantaged members of society. Social or economic resources and positions are scarce. It is not possible to provide each member of the society with an optimum amount of it. Inequalities are therefore unavoidable. Nevertheless, they are acceptable if they are arranged in a way that the least advantaged members of society are in a better ­position than would be the case in any other kind of distribution. (3) The Principle of Fair and Equal Access. The unequal distribution of social positions and economic goods is compatible with the equality of the members of society if every individual has an equal opportunity to attain privileged positions. The conditions of access must therefore be impartial and generally available.

Liberty principle

Difference Principle

Equal Access

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Criticism

3

For our purposes, we must take a closer look at the liberty principle. First, we must recognize that the scope of liberty which can be distributed equally is much broader than the scope of classical human rights. I will give you an example from German case law. The freedom to ride in a public forest is obviously a freedom that can be distributed equally. But, the freedom to ride in forest is not a human right. Rawls shares the opinion that the principle of liberty is “lexically prior” to the difference principle. This thesis cannot be defended for every kind of exercise of liberty, e.g. not for the freedom to ride in the forest. It might be applicable to human rights insofar as they relate to fundamental human needs that no one would renounce regardless of whatever other advantages he could get in exchange for them. Rawls does not distinguish between liberty in the broadest sense and liberty in the sense of human rights. Another very important aspect of Rawls’s conception is that his principles of justice are related to a particular society. You must first be a member of that very society before you are entitled to vote for the relevant principles of justice and before you can be a partner of the social contract. This construction can only justify civil rights, but not human rights. It follows that Rawls’s conception of the social contract does not lead to a foundation of human rights because human rights refer to all human beings and not only to members of a particular society. This fact remains hidden because Rawls claims that the scope of liberty according to his liberty principle is exactly identical to the scope of human rights.

3.6

Bound Before Contract

 hy Social Contract Theories Cannot W Serve as a Foundation for Human Rights

Having presented a brief overview of the major theories of social contract, I will show you once again why these theories are not suitable to provide a justification and foundation for human rights. (1) Socially unbound individuals cannot take over obligations. The classical conceptions of the natural state describe the inmates of that state as unbound, selfish individuals without any social ties to each other. Rousseau assumes social ties that are based on love and liking. But he don’t think about people who are not connected that

61 3.6 · Why Social Contract Theories Cannot Serve as a Foundation…

way. From this starting point remains open how such antisocial entities could ever make promises or enter contracts with people outside their scope of liking. It might be possible to enter strategic agreements which are based on mutual egoistic interests. But such agreements can never establish a foundation of inalienable and irrevocable human rights. The rights that would follow from such a strategic agreement are always under the condition that they continue only to extent that the interests of each party remain aligned. If one of the parties were to come to the insight that its private benefit could be larger if he were to cancel the agreement, than he would freely revoke it. It is not enough to understand that there are no chains which bind the individual to the aims and purposes of heteronomic authorities (God, nature). The absence of such heteronomic authorities might lead to the insight that human individuals are free. But it does not lead to the conviction that we are obliged to respect the freedom of others and to recognize and appreciate their autonomy. From this follows that the first and fundamental obligation cannot be established by contract. It must already exist before it is possible to agree to a contract. An individual who is not morally bound to anything is not capable of agreeing to a contract. The right to personal freedom must be recognized and respected before we can create systems of cooperation that are based on promises and contracts. (2) Contracts only establish bounds for the parties of the contract and not for persons outside the contractual ties. If a contract is the starting point of every kind of obligation, we cannot have obligations toward those who are not contracting parties. Even if they invite us to enter the contract with them, we are not obliged to comply. It is not an objection to say that the social contract is not a real contract but only a thought experiment. The idea of a contract includes the idea of the freedom to choose whether or not the parties are willing to enter the contract. This aspect may not be ignored in a thought experiment concerning the idea of a contract. (3) Therefore, the conception of human rights based on a social contract has failed. That was exactly the reason why the conception of human rights, as it was developed in the philosophy of the Enlightenment and as it should be implemented as part of the American and French revolution, has ultimately failed. Only the nationals of their own

Bound Beyond Contract

Legal Consequences

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state were considered contracting parties and it was possible to quit the contract with those who were considered to be an enemy or an antisocial subject. Regarding those without citizenship, there was no feeling obliged to respect their human rights. They were considered aliens, i.e., people without rights. This attitude was evident in the practices of the CIA, bringing people without US citizenship to Guantanamo or other countries to have then torture them.

3 A New Approach

3.7

A New Approach After World War II

Only as a result of the horrible events during and after the Second World War did it become obvious that human individuals needed to be protected against the exclusion of any social tie and that it is unjust in a very fundamental sense to leave human individuals alone in the natural state. In particular, the experience of being a refugee and not enjoying any rights anywhere in the world led to the demand of the German Jewish philosopher Hannah Arendt for “a Right to Rights”, i.e. a position of rights that are not only philosophical ideas but also positions that are always connected with the right to be protected effectively by any state power regardless of the nationality or citizenship of the person. As a result of these new ideas, the United Nations Organization, which was established immediately after the war in the year 1945, was given the task of establishing an ­international human rights regime in order to guarantee fundamental human rights for every person, independent of their citizenship and legal status. We will take a closer look at that regime in the next lesson. ??Do you still remember? 3.1 Contract theories have three elements in common. What are they? 3.2 Explain how social contract theories differ from each other. 3.3 Why is it not possible to provide a foundation of human rights by referring to legislation by God? 3.4 Why is it not possible to justify universal human rights on the idea of a social contract?

For the answers, see 7 Chap. 21.  

63 Reading Recommendations

Reading Recommendations Arendt, Hannah: ‘The Rights of Man’. What Are They? In Modern Review 1949, 24–37 Friend, Celeste: Social Contract Theory n.d. In Internet Encyclopedia of Philosophy. http://www.­iep.­utm.­edu/soc-cont/ Manzoor, Elahi: Social Contract Theory by Hobbes, Locke and Rousseau. n.d. [http://www.­academia.­edu/3138759/Social_Contract_Theory_ by_Hobbes_Locke_and_Rousseau] Rawls, John: A Theory of Justice. Cambridge MA: HUP 1971. n.d. https:// www.­uta.­edu/philosophy/faculty/burgess-jackson/­A%20Theory%20 of%20Justice% 20(Excerpts).pdf

Case Law BVerfG, decision of 06/06/1989  – 1 BvR 921/85 –, “Riding in the woods”, BVerfGE 80, 137. n.d.

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The Human Dignity Approach Contents 4.1

Human Dignity in International Law – 68

4.2

 he History of the Notion T “Human Dignity” – 71 Reading Recommendations – 77

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_4

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The Human Dignity Approach

4

The human dignity approach is suggested by the texts of international human rights treaties. The preamble of the UN Charter of 26 June 1945 refers to “faith in fundamental rights, in the dignity and worth of the human person, in the equal rights of men and women.” The preamble of the Universal Declaration of Human Rights (UDHR) of 10 December 1948 repeats this wording and adds a reference to the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.” Article 1 of the UDHR states that “all human beings are born free and equal in dignity and rights” and adds that human beings are “endowed with reason and conscience.” The preambles of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 16 December 1966 state that “the equal and inalienable rights of all members of the human family … derive from the inherent dignity of the human person.”

The Meaning of Human Dignity in International Human Rights Documents There is no legal definition of the term human dignity in international law. The wording of the documents of 1945 and 1948 combines the concepts of human rights, human dignity, and equal rights for men and woman as well as dignity and worth. The relationship between these concepts remains unclear. The International Covenants of 1966 explain the relation between dignity and rights as a relationship of derivation. A worldwide survey among philosophers and intellectuals conducted in 1947 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) did not lead to a distinct finding. Opinions about the concept “human dignity” as well as the term “human rights” were very confusing and diverse.

67 Chapter 4 · The Human Dignity Approach

The Heteronomic Understanding of Human Dignity In Cicero (de Officiis) and in many philosophers of the European Renaissance (Bartolomeo Facio, Gianozzo Manetti, etc.), human dignity was considered a particular status of human beings according to which they, in contrast to animals, hold a certain kind of “office” and are therefore obliged to act in accordance with the rules of this “office.” Human dignity refers therefore to duties and not to rights. In Germany, this approach was the prevailing one in between the 1950s and 1990s. This attitude still predominates in countries that are epitomized by Catholic Culture, e.g., in France where human dignity is considered the counter-concept to human rights. The function of human dignity is to restrict the range of human rights (Examples include the dwarf tossing case and the justification of the burka ban).

The “Ensemble Theory” of Human Dignity Within the English speaking world prevails the idea that human rights have to be considered pure positive law. From this point of view, human dignity cannot be considered a principle from which human rights can be derived. Instead, human dignity is considered a certain rank or status that is defined by the sum of all the codified human rights (human dignity = the ensemble of all human rights – Hilgendorf). Human dignity refers to the equal rank of every human being. It elevates, so to say, all humans to the status of the nobility.

The Autonomic Understanding of Human Dignity The autonomic conception of human dignity was first formulated by the Italian philosopher Giovanni Pico Della Mirandola (1463–1494) in his work Oratio de Dignitate Hominis (1486). Mirandola focuses on the ability of human beings to design their own lives according to their own free will. The freedom of will is what makes the difference between human beings and other entities. The dignity of man is founded in this freedom. The dignity does not depend on the fulfillment of duties, but solely on the competence of human beings to manifest their own free will and design their own lives.

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4.1

4

What is dignity?

Human Dignity in International Law

In this lesson, I want to introduce the human dignity approach. I believe that this approach is the only one that is suited to providing a convincing foundation of human rights. Nevertheless, we must recognize that the concept of human dignity is very often very misunderstood. The history of misunderstanding began with the discussion about the term in international human rights discourse. In the international law, human dignity is first mentioned in the preamble to the Charter of the United Nations. Here we read:

»» We the peoples of the United Nations determined to save

succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small …

Smuts

The wording alone, however, shows that the meaning of “dignity of the human person” was not entirely clear to the drafters of the Charter: (1) The expression “dignity and worth” is confusing. Obviously, it seems that dignity means something different from “worth.” But what is the difference between “dignity” and “worth”? What is “dignity” when it is not a kind of “worth”? (2) What is the relationship between human rights and human dignity? Both are also listed one behind the other and the list embraces the “equal rights of men and women.” Are “human rights,” “human dignity,” and “equal rights” different things of the same category, so that they can be summarized in a list like apples, pears, and cherries can be summarized under the category of “fruits”? Is it possible to understand “human rights” as unequal rights in comparison with “equal rights”? Is “human dignity” the designation of a third sort of rights? Another aspect is similarly confusing. The clause in question was first proposed by the South African Prime Minister Jan Christiaan Smuts (1870–1950). He criticized the first draft of the preamble, which did not contain any reference to human dignity. He demanded under the title “United Nations” a preamble that embraced a confession to the basic ideals of the coalition that fought against

69 4.1 · Human Dignity in International Law

Hitler. Smuts believed that World War II was a religious war between different religions and that fundamental human rights, human dignity, and the equal rights of men and women were the core elements of the religious believes for which the allied forces fought. Smuts draft didn’t contain the expression “dignity of the human person” but rather the expression “dignity of the human personality.” There was an intense dispute among the drafters of the Charter about this proposal and many of them proposed to replace “human personality” with “human being.” Finally, the drafters decided on the expression “human person.” This was a compromise because Smuts had strong objections against the expression “dignity of the human being.” The reason for that objection was that Smuts did not share the idea that every human being is endowed with dignity or that dignity should ascribed to every human being. Dignity should only ascribed to those who are considered personalities. The concept of personality should distinguish between different sorts of human beings. Smuts distinguished between white human beings and the sort of colored human beings. Dignity should be ascribed only to the white race and not to every human being. While for Smuts the term dignity was an instrument of distinction between human beings, the majority of the drafters shared the opinion that dignity is something that should be ascribed to every human being and that there is no difference between human beings in terms of dignity. But they considered the expression “human person” a synonym of “human being.” It is important to recognize that the preamble of the UN Charter uses the formulation “to reaffirm faith in.” This expression shows that the drafters of the Charter shared the opinion that neither human rights nor the dignity of the human person nor the equal rights of men and women are something that can be established by law or treaty. The word “faith” was meant by Smuts as a religious term. Nevertheless, as we know, not every contracting party of the UNO was motivated by a particular kind of religious belief. In particular, the Soviet Union was expressly not a religious state. China at the time, and until 1971, was represented by the Kuomintang government whose official ideology was also not influenced by any particular religious belief. Still, all contracting parties could accept the wording “reaffirm faith in.”

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4 Gandhi

This shows that “faith” in the UN Charter may not be understood as religious belief of a particular kind. “Faith” simply means that each contracting party of the UN Charter shared the opinion that there are human values that should be regarded as the ethical basis of the new world organization. They also shared the opinion that these values can be embraced with the terms “human rights, dignity of the human person, and equal rights of men and women.” Nevertheless, the idea of common values of humanity was not discussed in detail and the ideas that the states associated with the concept were very diffuse and different. It is interesting that, in 1947, UNESCO found it pertinent to conduct a worldwide survey among philosophers and intellectuals about the foundation of human rights in order to prepare the drafting of the Universal Declaration of Human Rights. The result was so confusing and diverse that UNESCO decided to keep the answers confidential in order to avoid unnecessary complications in the negotiations over the UDHR. One of the answers came from Mohandas Karamchand “Mahatma” Ghandi. He held the opinion that rights can only emerge through the fulfilment of obligations. So, for example, we would have the right to life only if we fulfill our duties as citizens of the world:

»» The very right to live accrues to us only when we do the

duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define the duties of man and woman, and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be usurpation hardly worth fighting for.

Dwarf Tossing

That is precisely what many understand by human dignity. According to this understanding, the relation between human dignity and human rights is to be likened to the relation between duties and rights. Human dignity requires the fulfilling of certain human duties. And those who sufficiently perform their duties are conferred certain rights. The rights describe the precise scope of freedom that is required in order to fulfill the duties. This understanding of human dignity is very influential in countries and cultures that are strongly epitomized by the spirit of Catholicism (Łuków, Hennette-Vauchez). Consider the following two examples from France.

71 4.2 · The History of the Notion “Human Dignity”

(1) The Wackenheim case: Mr. Wackenheim was small in stature. He earned his money by making himself available to be used as a missile in public performances where he was tossed as far as possible by strong, large men. This performance was called dwarf tossing. The police authorities issued a prohibition order against these performances and the Conseil d’Etat upheld it on the grounds that the performance violated human dignity and was therefore contrary to the public order. There was a similar case in front of the German Verwaltungsgericht Neustadt. (2) When the French law concerning the ban of burkas and niqabs in public came before the ECourtHR, the French government defended the law, arguing that the complete concealment of the face violates human dignity and that it was therefore necessary to prohibit this kind of clothing. According to the French approach, it is incompatible with the obligations derived from human dignity for human beings to display themselves in public in a way that is considered degrading. According to this view, it is contrary to human dignity to display oneself as a human missile or as a human nobody. In both cases, people disregard the duty to appear in public in way that human dignity demands. The state thus has the right in these cases to oppress and punish a behavior that is contrary to human dignity. Defending human dignity does not mean defending the real interest of human individuals, but rather defending dignity as a public and super-individual value.

4.2

 he History of the Notion T “Human Dignity”

This understanding of human dignity is very traditional. In fact, it is the oldest understanding of the concept. “Dignity” comes from the Latin notion dignitas, which expressed a certain difference in worth of particular personalities compared to the rest of mankind. In this former meaning, the expression “human dignity” was rather senseless because the function of the notion was just to distinguish between different particular human individuals in terms of their social value and status. In the ancient language, one could only speak about the dignity of the nobles as compared to the commoners, the dignity of the

Cicero

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Ensemble Theory

king as compared to his subjects, the dignity of a judge as compared to other persons in court, etc. Only the Roman statesman and philosopher Marcus Tullius Cicero (106– 43 BC) coined the notion “human dignity” in order to distinguish between human beings and animals. Cicero defended the idea that human beings have, compared to animals, a higher rank and that this rank is connected with certain duties. Human individuals who disregard these duties degrade themselves to animal-like entities. The term “human dignity” in the meaning of Cicero became very popular in the fifteenth century. Philosophers of the Italian Renaissance like Bartolomeo Facio, Gianozzo Manetti, and others started with the question of why God created human beings. The answer was: not because God requires humans in order to have servants or because there is any other need for him. God created man simply because of his pure goodness. Humans are therefore not means to any particular end. Rather, as Immanuel Kant later expressed, they are ends in themselves. Being an end in themselves is what distinguishes humans from animals and every other non-human entity. Being an end in themselves is the meaning of the term human dignity. Nevertheless, all these philosophers shared the traditional opinion that the social rank of human dignity comes from a source of special human obligations, namely, the duty to subject oneself under the rule of God and to follow his divine commandments. This traditional understanding of human dignity can be called the heteronomic one. It is interesting to note that some contemporary philosophers are still fixated on the idea that the notion dignity refers to a certain rank or status. Accordingly, the American philosopher Jeremy Waldron defends the opinion that dignity originally refers to the extraordinary high rank and status of nobility as compared to the status of ordinary people. As a result of the French revolution, ordinary people were now considered elevated to the high rank of the nobility – they became equal in rank and status with the nobility. According to this idea, human dignity is defined by the sum of all the codified human rights. The German legal philosopher Eric Hilgendorf speaks of human dignity as the ensemble of all the human rights (Ensemble Theory of Human Dignity). American philosophers who simply understand human rights as positive rights like any other right share this view because they do not have any other opportunity to understand the mean-

73 4.2 · The History of the Notion “Human Dignity”

ing of human dignity but only an understanding from a pure positivistic point of view. Nevertheless, in order to find an adequate foundation for human rights, this approach is fruitless. Waldron and Hilgendorf consider human dignity as being derived from the entirety of codified human rights. Our interest is just the opposite. We do not want to derive the principle of human dignity from human rights. Instead, we search for the opportunity to derive human rights from the principle of human dignity. The traditional heteronomic understanding of human dignity was challenged by the Italian philosopher Giovanni Pico della Mirandola (1463–1494) in a famous writing that was published in 1486 under the title De Dignitate Hominis (“On the Dignity of Man”). Mirandola tells the story of the creation of man. God created man, took him in the middle of the world, and spoke to him:

»»18. We have given you, Adam, no fixed seat nor features proper to yourself nor endowment peculiar to you alone, in order that whatever seat, whatever features, whatever endowment you may responsibly desire, these same you may have and possess according to your desire and judgment. 19. Once defined, the nature of all other beings, is constrained within the laws prescribed by us. 20. Constrained by no limits, you may determine it for yourself, according to your own free will, in whose hand we have placed you. 21. I have placed you at the world's center so that you may thence more easily look around at whatever is in the world. 22. We have made you neither of heaven nor of earth, neither mortal nor immortal, so that you may, as the free and extraordinary shaper of yourself, fashion yourself in the form you will prefer. 23. It will be in your power to degenerate into the lower forms of life, which are brutish; you shall have the power, according to your soul's judgment, to be reborn into the higher orders, which are divine.

Mirandolas’s idea was completely opposite of the traditional understanding. According to Mirandola, the dignity of the human person does not refer to duties and obligations but to the competence to produce free will. We can call this conception the autonomic one. Mirandola presented a completely new idea in traditional religious language. He was the first philosopher to identify human dignity with the free will of human persons. In contrast to former conceptions, how individuals

Mirandola

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use their capability to form a will was no longer relevant. It was not relevant to consider what individuals really want. The only thing that is relevant is the capacity to create one’s own free will. This becomes clear in the last paragraph of the cited text: Human individuals can decide to degenerate into lower forms of life, which are brutish, i.e., animal-like. Or they can decide to be reborn into the divine order. The dignity does not depend on the alternative which the individual chooses. Rather, the competence to decide is what makes the dignity of the individual. In this meaning, human dignity has nothing to do with duties and obligations. Instead, it has to do with freedom, namely the freedom of will. At this point, I would like to draw your attention to the important distinction between freedom of will and freedom of action. I will return to that. We have to keep in mind that the alternative conceptions of human dignity – the understanding as obligation versus the understanding as freedom of will  – were not discussed by the drafters of the UN Charter or the drafters of the UDHR. The UNESCO survey had shown that these alternatives existed and that there was no consensus about this question. The question remained open while the concept of human dignity was further used, playing an important role in the drafting of the UDHR in the time between the end of 1946 and December 1948. In the drafting process of the UDHR, it was agreed that human rights must be understood as rights that are based on the principle of human dignity. This is shown by the first sentence of the preamble

»» Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …

as well as in the fifth paragraph,

»» Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person

and in Article 1:

»» All human beings are born free and equal in dignity and

rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

75 4.2 · The History of the Notion “Human Dignity”

Thus, throughout many sessions it was discussed how the connection between human dignity and human rights should be expressed. Nevertheless, the delegates could not agree on a formulation that brought both aspects together. Consequently, the notion of human dignity appears only in the preamble while the first articles adds some relevant aspects to it. The term dignity appears in the preamble twice. The fifth paragraph is insofar a repetition of the formula in the UN Charter. The first paragraph does not speak of the dignity of the human person anymore, but replaces this expression with the expression all members of the human family. This wording was chosen in order to make clear that dignity is not something that can only ascribed to certain parts of mankind. Members of the human family are individuals and every human individual should be considered someone to whom dignity should be ascribed. Article 1 of the UDHR shows the reasons why human dignity should be ascribed to every human individual: every human is endowed with reason and conscience. What in Mirandola was expressed with the words “free will” is here described as “reason and conscience.” Nevertheless, one question remained unclarified: is it true that every member of the human family, i.e. every human individual, is endowed with reason and conscience? This question surfaced for the first time in the context of modern bio-technology. The drafters of the UDHR were not aware that there could be a difference between “human persons” and “every member of the human family” because individuals are not persons when they are not endowed with reason and conscience. We will come back to this point later. Another very interesting point of Article 1 of the UDHR refers to something that is not written. It appears only when we compare the text to the very similar wording found in Section 1 of the Virginia Bill of Rights of 12 June 1776.

»» That all men are by nature equally free and independent and have certain inherent rights.

There, we read that all men are equally free and independent and that they have certain rights. This is very similar to the wording in Article 1 of the UDHR which provides that all human beings are born free and equal in dignity and rights. The key difference is that the words “by nature” in the Virginian Constitution do not appear in the UDHR. One

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could think that the phrase “by nature” is synonymous with “are born”. But there was a long debate among the drafting committee of the UDHR about whether it should be said that human individuals are endowed with reason and conscience by nature. Some delegations argued for the expression “by God” (Brazil). Ultimately, the conference could not agree on a common metaphysical preunderstanding and the words “by nature” were simply deleted. It is interesting to recognize that from the viewpoint of the drafters, on the one hand, “human dignity” obviously refers to a certain metaphysical understanding while, on the other hand, that metaphysical preunderstanding was to remain open. In other words, the question about the foundation of human rights was put forward to ­philosophy. Fortunately, however, the third step of development in the codification of international human rights succeeded in further clarifying the relationship between human dignity and human rights. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 16 December 1966, state in their preambles that the inherent dignity and the equal and inalienable rights of all members of the human family were not only the foundation of freedom, justice, and peace in the world, but also that “these rights [are] derive[d] from the inherent dignity of the human person.” With this wording the relationship between dignity and rights was clarified insofar as it was shown that human dignity is considered the basis from which human rights can be derived. Human dignity is therefore not a right itself. It is something different from rights. It is the principle on which rights are based. As the result of what we have learned today we can conclude the following: (1) According to the understanding of the international human rights instruments, human rights are a set of rights that are not established by law or treaty, but rather are the precondition of law and treaty. Thus, the codification of human rights is not to be considered a kind of creation, but rather a kind of recognition. (2) Human rights are based on a common principle that is called the principle of human dignity. The human rights can be derived from the principle of human dignity. Human dignity is considered something that must be ascribed to every member of the human family or, perhaps at least, to every human person.

77 Reading Recommendations

(3) The idea of human dignity is not clarified in international law. There is no legal definition. Nevertheless, the fact that international law considers human dignity the source of human rights – as opposed to human duties – suggests that the concept should be understood in the autonomist sense. (4) So, it is the task of the human rights courts to clarify the concept. But it seems that the courts cannot achieve this task without very deep und careful philosophical reflection. This is what we shall do in the next lesson. ??Do you still remember? 4.1 What was the original understanding of dignity? 4.2 There is a heteronomic as well as an autonomic understanding of human dignity. Which of these understandings form the basis of the decisions in the so-called dwarf tossing cases? 4.3 What are the crucial criteria of the heteronomic understanding of human dignity? 4.4 What are the crucial criteria of the autonomic understanding of human dignity?

For the answers, see 7 Chap. 21.  

Reading Recommendations Cicero, Marcus Tullius, De officiis (On duties), I, 105, 106. n.d. Gandhi, Mohanas Karamchand: Letter to the Director General of UNESCO. In Jaques Maritain (ed.): Human Rights. Comments and Interpretations. A symposium edited by UNESCO. UNESCO/PHS/3 (rev.) 1948  – http://unesdoc.­unesco.­org/images/0015/001550/155042eb.­ pdf Gisbertz, Philipp: Menschenwürde in der angloamerikanischen Rechtsphilosohie. Ein Vergleich zur kontinentaleuropäischen Begriffsbildung. Baden-Baden: Nomos 2018. Hennette-Vauchez, Stéphanie: Human dignity in French law. In Düwell/ Braarvig, Brownsword/Mieth (eds), The Cambridge handbook of Human Dignity, Cambridge (UK) 2014, 38–374. Heyns, Christof: The preamble of the United Nations Charter. The contribution of Jan Smuts. African Journal of International and Comparative Law 7 (1995), 329. Hilgendorf, Eric: Problemfelder der Menschenwürdedebatte in Deutschland und Europa und die Ensembletheorie der Menschenwürde. Zeitschrift für Evangelische Ethik 57/4 (2013), 258–271. Łuków, Pawel: A Difficult Legacy: Human Dignity as the Founding Value of Human Rights. Hum Rights Rev. 19 (2018), 313–329.

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Pico della Mirandola, Giovanni: Oration on the Dignity of Man. n.d. http://bactra.­org/Mirandola/, http://www.­brown.­edu/Departments/ Italian_Studies/pico/text/bori/frame.­html Waldron, Jeremy: Dignity and Rank. European Journal of Sociology 48/2 (2007), 201–237.

Case Law

4

Conseil d’Etat Assemblée, du 27/10/1995  – 136727  – (Sté Fun Productions et Wackenheim), RDS 1996, 177. n.d. [https://www.­ legifrance.­gouv.­fr/affichJuriAdmin.­do?oldAction=rechJuriAdmin &idTexte=CETATEXT000007877723]. ECtHR, jud. of 01/07/2014 – 43835/11 – “S.A.S. vs France”, HUDOC. n.d. VG Neustadt, dec. of 21/05/1992 – 7 L 1271/92 –, NVwZ 1992, 98.

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Dignity as a Value Judgment – 83

5.2

Dignity as a Specific Category of Value – 87

5.3

 ersonhood as the Value Standard of P Dignity – 89

5.4

“ Me-Dignity” and General Human Dignity – 93

5.5

The Risk of Empirical Error – 96 Reading Recommendations – 97

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_5

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Etymology of “Dignity”

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“Dignity” goes back to the Latin word “dignitas.” Dignitas stems from the Indo-Germanic root “dek,” which means to accept something, to adopt something, to prefer something. The German translation of dignitas is “Würde.” This word stems from the Old High German root “wīrtī” = Wert, worth, value. From the etymology follows that dignity does not refer to an attribute of an entity out in the world but to an act of evaluation.

Value Judgments Acts of evaluation result in a value judgment. Value judgments have the form “X is (considered) valuable” or “X is (considered) good” or “X is (considered) worthy.” The abstract structure of value judgments is as follows: 55 p prefers x compared to y on the basis of value standard v. In contrast to assertoric propositions (“Beijing is the capital of China”), value judgments do not tell us something about facts. They are therefore neither true nor false. They are statements of a person concerning certain facts which tell us something about the attitudes of the person who delivers the statement. Value judgments are either valid or invalid. Their validity depends on whether there is a person who delivers the judgment or at least agrees with it. This understanding of value judgments corresponds to the so-called subjective value theory or value subjectivism (Mackie, von Wright). Many philosophers (McNaughton, Putnam) contest this theory and defend instead an objective value theory or value realism. Value realists believe that values are part of the objective world (“world inventory”) and are therefore a matter of facts. Objective value theories are modern variants of the ancient Greek cosmos theory.

81 Chapter 5 · The Human Dignity Principle I

Standards of Evaluation Value judgments are only comprehensible if they indicate a standard of evaluation. That is the value scale on which the evaluation is oriented. A value judgment without the indication of a standard of evaluation is to be considered irrational.

The Categories of Values Immanuel Kant distinguishes two different categories of value: relative value (price) and absolute value (dignity). He further distinguished between two sub-categories of price: Intrinsic value (fancy price) and extrinsic value (market price). The criterion of distinction is the standard of evaluation (value scale): 55 Intrinsic value – value scale: love, liking. 55 Extrinsic value  – value scale: exchangeability (supply and demand). 55 Absolute value  – value scale: “that which constitutes the condition under which alone anything can be an end in itself.” This is  – deviating from Kant – the personhood.

Personhood Personhood consists of the self-awareness that “I am” as well as the self-awareness of “who I am” (personal identity). The awareness of “who I am” is an individual’s consciousness of being the author of one’s own will and therefore the source and ultimate reference point of all his/ her evaluations. Having this awareness makes an individual more than just a device or instrument in the hand of others or a mere object of nature. The awareness of “who I am” can also be called the awareness of one’s own authenticity or the awareness of being someone and not just something. Living entities who have this awareness are called persons.

Absolute Value of Personhood Personhood is valuable in the most absolute sense to every person because it is the required condition of any other evaluation. Any other object can only be considered valuable because it is valuable for that person by virtue of her personhood. The awareness of personhood (authenticity) is the source of all self-esteem.

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Only Individual Persons as “Bearers” of Dignity

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Persons are the only entities to whom we can assign absolute value because only persons, or at least potential persons, are endowed with the capacity to manifest free will on the basis of their own considerations and reflections. Persons are the only entities to whom we can assign an absolute value – dignity. Theoretically, non-human persons are conceivable, and we may therefore assign dignity to them. Nevertheless, not every member of the human family is endowed with personal identity or at least with the potential to develop personal identity (e.g., acephalous human babies). Therefore, we cannot ascribe dignity to every member of the human family, but only to those who are persons or potential persons. Human dignity refers to the dignity of the human person.

Me-Dignity Every person may assign herself dignity (“me-dignity”) because the capacity to be the author of one’s own free will has absolute value for every person. But the fact that every person may assign herself dignity does not lead to the universal value of human dignity. Human dignity, as a universal value, demands that every person not only ascribe dignity to herself, but also to every other person in the world.

The Generality of Human Dignity The personhood of every other person in the world can only be an absolute value for a given person if the personhood of every other person is a requisite condition for every person having and recognizing her own personhood. Therefore, the authenticity of other persons can be an absolute value for a person only if there is equiprimordial connectivity between one’s own authenticity and the authenticity of every other person. Equiprimordiality refers to the existence of two entities that depend on each other because the first entity is a required condition of the second and the second entity is a required condition of the first. They are like the two sides of the same coin. Either both of them exist or neither do.

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The Equiprimordiality Thesis Whether there is equiprimordial connectivity between the awareness of one’s own personhood and the awareness and recognition of the personhood of any other person cannot be answered through pure philosophical means. The answer demands not only an analysis of language but some knowledge about the natural conditions of human life and its development. Therefore, only the empirical sciences can \ deliver an adequate answer. [Some philosophers considered the equiprimordiality thesis to be a matter of pure philosophy that can be answered through transcendental arguments. Examples of such philosophical trials are the first chapter of Johann Gottlieb Fichte’s Foundation of Natural Rights and the chapter “Master and Slave” in Georg Friedrich Hegel’s book Phenomenology of Spirit, 1807.] Therefore, we have to formulate an empirical hypothesis that can be examined by means of the empirical sciences. This hypothesis is thus: The authenticity of any person and the authenticity of any other person are equiprimordial.

5.1

Dignity as a Value Judgment

In this lesson, we move to the core substance of the lecture. It is very important to understand the particular steps of my argumentation that I want to introduce today. Only a sufficient understanding of this argumentation allows you to understand what human rights are and which criteria we must observe to address whether we must consider a certain demand to be a human right. The first question we have to ask is: What is dignity? A very good beginning of any explication of concepts is a view on the etymology of the word. The English word dignity comes from the Latin word dignitas, which comes from the Indo-Germanic root “dek.” Dek means to accept something, to adopt something, or to prefer something. Thus, dignity is not an expression that indicates a fact out in the world or a collection of facts. It is also not what we call a sortal. A sortal is a noun that serves the purpose of classifying single entities by counting individuals of the same sort. “Dignity” refers neither to individual entities nor to classes of individuals. Instead, it expresses a value

Etymology

What is dignity?

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Value Judgment

Truth and Validity

judgment! This value judgement says the following: The Human Being is Valuable. As you will recall, the instruments of international human rights do not talk about “human dignity,” but about “dignity of the human person” or “dignity of all members of the human family.” As I mentioned before, there is a difference between “member of the human family”—which may be equated to “human being”—and human person. Nevertheless, at this stage of my argumentation, we do not have to ask for the object to which we may assign dignity. Rather, we are questioning what is meant by dignity. Therefore, we may at this time leave open the question about the object of the evaluation. What is more relevant here is the question about what value judgments really are. Value judgments in general have a certain structure. We can display that structure in the following way. 55 p prefers x compared with y on the basis of the value standard v We must first distinguish between assertoric propositions and value judgements. The sentence “Beijing is the capital of China” is an assertoric one. It is either true or false. The sentence is true if Beijing is the capital of China. Otherwise it is false. In any case, its truth or falsity does not depend on the person who asserts this proposition. In comparison, value judgments do not refer to the objective reality. Instead, they express a certain position or statement of a particular person that relate to reality or particular aspects of reality. Therefore, value judgments are neither true nor false. They are valid or invalid, and their validity depends on whether there is someone who agrees with that judgment. In contrast to truth in assertoric propositions, the validity of value judgments depends on the person who identifies with it. A value judgment is valid only if there is at least one person who delivers it or who agrees with it. It makes sense to use the notions of truth and validity as possible attributes of assertoric, resp. evaluating sentences but not as possible attributes of entities beyond the language, i.e. in the outer world. Assertoric propositions can have the attribute of being either true or false. Value judgments can have the attribute of either being valid or invalid. You may find additional information about the characteristic of value judgments in von Wright and Urmson. It is very useful to follow the proposed distinction between

85 5.1 · Dignity as a Value Judgment

truth and validity because it always clarifies the difference between assertoric propositions and value judgments and avoids confusion and misunderstanding. In our ordinary language, we do not carry out this distinction and, for this inaccuracy, we harvest much uncertainty in our thinking. This risk also occurs if we do not distinguish between value judgements themselves and secondary reports about value judgements. When a person makes such a report, the person only asserts a piece of information which can either be true or false. For example, if I say, “Peter prefers Monica from all girls in the classroom,” I am expressing an assertoric proposition. This is different from what I understand when Peter expresses to me that he has a preference for Monica. In this case, I become a witness of a certain kind of performance, namely the delivering of a value judgment. Value judgments in this sense are performative actions in the meaning of John L. Austin. The general structure of a value judgment shows some variables that require further clarification. So, who is p? P is the one who puts forth the value judgment by showing his own preference for a certain object. The variables x and y do not need any further comment. X is the object of the evaluation and y makes clear what preference is meant with regard to the particular context. Preferences are always based on a comparison between concurring objects. Y is the object of comparison with x. But what of the variable v? V is a standard or unit of measurement that makes the value judgment rationally comprehensible or understandable. Such standards are in fact values of a higher level of abstraction. Take the following example. Someone says, “This computer is good.” This sentence is not very comprehensible and understandable. We cannot understand why and to what extent the computer is considered to be good. We can ask, “Why do you think that this computer is good?” And the answer could be that “This computer is good because it is stable.” This sentence is a comprehensible value judgment because we know the relevant standard of measurement, namely, stability. Perhaps someone else would say, “No. This computer is not good. This other one is good because it is faster.” Nevertheless, there is no contradiction between these two value judgments. The former is based on a stability standard while the latter is based on a processing speed standard. Obviously, the persons who

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deliver these two different value judgments have different interests when it comes to the evaluation of computers. Very often, people deliver value judgments without any reference to a value standard. But those judgments are irrational and it does not make any sense to try to understand them. For value judgments to be comprehensible, we must know on which value standard they are based. Now let us apply the structure of value judgments to the dignity judgment about human beings. The first question is who is p? The validity of the human dignity judgment depends on our individual agreements. We are the ones who are responsible for the “existence” of human dignity. If we think human beings have dignity, then they have it; if we do not think they do, then they do not. Thus, the answer depends on our personal statements and positions. It is not possible to demonstrate the dignity of the human being or the human person to those who do not share the same position. Indeed, there are many people who do not share it. I will come back to this point later. A state who implements the principle of human dignity within its constitution or law shows that citizens, or at least the most politically influential part of the population, agree with the judgment of human dignity. People and states who do not agree with that judgment are not wrong in their perception of reality. Our point of view leads us to think that they prefer a different and wrong way of life. We think that sharing the dignity judgement would be a way to a better life for them. This is why we will try to convince them of the value of human dignity. To convince someone of the value of human dignity is not merely an intellectual challenge. It does not require intellectual or philosophical arguments, but rather the particular kind of experience with other persons that helps establish a new and different relationship to this other person: a particular relationship of self-esteem. I come back to this problem in the next lesson. The next question is what is x? X is the object of evaluation, in our case “the human being.” But what exactly is meant by “human being”? Is it every single human individual (every member of the human family)? Is it only a personal human individual (every human person)? Is it only those personal human individuals with “personality” (the idea of Smuts) – i.e., what we call a “Gentleman” or a very serious or reliable person? Is it an idea of humanity? Is it mankind as such, the human species? At this point, we

87 5.2 · Dignity as a Specific Category of Value

are unable to answer this question. But I promise to answer it later. What is y? We cannot know what entity we are to compare human beings to without first knowing what is meant by human being. So, at the moment we must also leave this question open. What is v? This question refers to the value standard that underlies our human dignity judgment. At this stage of my argumentation, the difference between value and dignity becomes relevant. What is the relationship between value and dignity?

5.2

Dignity as a Specific Category of Value

Dignity is a kind of value. Value is a generic term while dignity is one of the specific terms of value (see . Fig. 5.1). The difference between the different kinds of value is based on the different categories of value standards. So, it is necessary to determine the particular category of value standard that underlies the particular kind of value that we call dignity. There are two different categories of value. According to Maximilian Forschner, the subdivision of the term value in these two different categories goes back to the ancient European philosophy of the Stoa. The Stoa distinguished between the categories of price (axía) and what is today called dignity (axíoma). Nowadays, the locus  

Value (generic term)

Specific term price

Specific term dignity

Specific sub-term

Specific sub-term

Intrinsic value fancy price

extrinsic value market price

..      Fig. 5.1  The specific terms and sub-terms of the term “value”. (© Paul Tiedemann)

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c­ lassicus of that distinction is a spot in Immanuel Kants first book on moral philosophy, Foundations of the Metaphysics of Morals (1786). Here we read:

»» In the kingdom of ends everything has either price or dig-

nity. Whatever has a price can be replaced by something else which is equivalent; whatever, on the other hand, is above all prices, and therefore admits of no equivalent, has a dignity. Whatever has reference to the general inclinations and wants of mankind has a market price; whatever, without presupposing a want, corresponds to a certain taste, that is to a satisfaction in the mere purposeless play of our faculties, has a fancy price; but that which constitutes the condition under which alone anything can be an end in itself, this has not merely a relative worth, i.e., price, but an inner worth, that is dignity.

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Fancy Price

Kant distinguishes between the two different categories of value: price and dignity. We can express this distinction in terms of relative and absolute value. In the category of relative value, he further sets out two subcategories: the fancy price and the market price. We can express this distinction in terms of intrinsic and extrinsic value. We are used to dealing with extrinsic and intrinsic values in our everyday life. We are very familiar with them. In order to determine the value standard of dignity it might therefore be useful to first clear up the value standards of the market and the fancy prices. From there, we can try to come closer to the value standard of dignity. Something has a fancy price if we are interested in it as such. If we are interested in something as such, we love it or we like it. So, the value standard of the fancy price is love or liking. Nevertheless, we are not just interested in only one thing or event or whatever. Sometimes, we can only attain something that we like if we renounce something else in which we also have a similar interest. In such a situation, we must decide what we prefer. We tend to prefer things that we love more than others. All the subjects of our desire are situated in a preference order and this order tells us what we are supposed to prefer in a particular situation. Therefore, all the things we love are related to each other within the framework of a preference order. Take the example of a stamp collector. He desires stamps. He does not want to use them to send letters or postcards. He puts them in his stamp collection book and is simply happy to own them or perhaps it is that he enjoys

89 5.3 · Personhood as the Value Standard of Dignity

the aesthetic of the stamps. Stamps, or a particular sort of stamps, have a fancy price for him. Something has a market price if we are not interested in it as such but only in something else which we can exchange for it. So, the market price of something is always relative to something else that we actually want. The value standard of the market price is the relation between supply and demand  – or in other words, the exchangeability. Take the example of a pen friend. She desires stamps like the stamp collector does. But she is not interested in the stamps such as they are. She needs them to send letters to her pen friend. So, she exchanges the stamps with being able to send her letter to the address of the pen friend. By these two examples you can determine that a stamp having a fancy price or a market price does not depend on the stamp. The price of the stamp is not an attribute of the stamp itself but a certain attitude of the stamp collector or the pen friend. I think this knowledge about the characteristic of prices and about the two subcategories of prices can help us understand the meaning of dignity. Dignity is the opposite of prices. It does not refer to a relative value but to the opposite of relative. The opposite of relative is absolute. Dignity means an absolute value. “Absolute” means free from any relation to ordinary intrinsic values—that is, not integrated in a preference order but existing beyond every possible preference order. Furthermore, it means, of course, that there is nothing else in the world that could be worth receiving in exchange for goods that are ascribed dignity. Therefore, something has dignity if it is more important in the absolute sense than every other valuable entity (things, relationships, situations, positions, etc.). It is not possible to renounce entities that have dignity nor is it possible to balance them or to prefer things that do not have dignity over things that do. But the question remains: What is the value standard of dignity?

5.3

 ersonhood as the Value Standard P of Dignity

The value standard of dignity is, of course, not exchangeability because dignity is the opposite of market price and exchangeability is the value standard of the market price. Furthermore, pure love and liking also cannot be the value

Market Price

Dignity

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standard of dignity because these form the value standard of the fancy price. Accordingly, is there something that can function as the value standard for absolute values? It must be something that always trumps every other valuable entity in every situation such that it is unavoidably preferable in every situation. Is such a thing imaginable? Many philosophers hold the opinion that such a value standard does not exist. For them, values are always relative. They claim that everything has a price. There is not such a thing like an absolute value. I want to prove incorrect this skepticism. It can be shown that there is indeed something that has an absolute value for logical reasons and that can function as the value standard of dignity. This is what we call personhood or personal identity. What exchangeability is to the category of market prices, what love is to the category of fancy prices, is what personhood is to dignity. What is personhood? It is composed of two aspects: 1. the awareness that I am (the awareness of my pure existence), and 2. the awareness of who I am.

5

Personhood as Absolute Value

I can only know who I am if I am aware that I am the author of my own will. Such is the case because I am aware that I am the one who has emerged and is emerging from a lifelong continuous stream of actions that I will to be. I am thus made and transformed by my will manifesting into actions. The awareness of being the author of one’s own will as well as the actions that are based on such will can be called the awareness of authenticity or personhood or personal identity. I use these three expressions interchangeably. A lack of authenticity can confuse or destroy our personal identity because in such a situation we are not able to understand ourselves as the authors of our will and are instead forced to conceive of ourselves as mere objects that react to the laws of nature or mere instruments or devices in the hands of others. It is not only necessary to know what personal identity is. We must also clear up why personhood is supposed to be so important that we can say it is absolutely valuable. Personhood is absolutely valuable because the awareness of being the author of our own will gives us the consciousness of being the ultimate point of reference for any evaluation – that is, to be an entity whose value is beyond any other value because it is the source of all other values. This

91 5.3 · Personhood as the Value Standard of Dignity

is the basis of any real self-esteem. It is the awareness of being someone and not just something. One can understand the absolute value of personhood with the following: if personhood only had relative value, then there is a conceivable situation where any X would be more valuable for a person than his or her own personhood. If X is more valuable than one’s personhood, it would reasonable in the event of such a conflict to renounce personhood in order to attain X. But giving up personhood means giving up the ability to manifest one’s own will. Nevertheless, without the ability to produce one’s own will, everything loses its value, including X. For values are the result of our will making. Without the capacity to produce one’s own will, nothing can have any value. Personhood is a prerequisite for the possibility of any evaluation and, therefore, a required condition of the possibility of any and all value. At this stage of the lesson, we can conclude that there are three different categories of value that they can be distinguished through their different value standards, that dignity is one of these categories and that it is defined by the value standard of personal identity. Now we come to the evaluation of human beings. What is the value of a human being? As such or by nature, human beings as living entities are simply facts and facts, by nature, have no value. For values are not part of the world inventory. They exist only as the result of subjective acts of evaluation. It is up to us whether we assign a certain value to human beings. Like every other object, human beings can also be assigned an extrinsic value (market price). We always do as much when we hire a worker, elect a politician, or listen to a lecturer. The worker has a market price for the employer. He is interested in the work of the worker and the worker, or the lecturer, can be replaced by another, better worker or lecturer or even a robot. The market price of a worker is expressed in his wage. The market price of a lecturer can be expressed by his amount of royalties or academic awards. Like every other object, human beings can also be assigned an intrinsic value (fancy price). We always do as much when we regard someone as our friend or when we love our children. In such cases, our friend or our children have a value as such for us. Nevertheless, the rank of this value can only be identified in the frame of a preference order. Indeed, some may be willing to neglect their chil-

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dren in order to improve their career or rescue their stamp collection. But what is about dignity? It is not possible to assign dignity to every object. Only those objects that are endowed with personhood, or at least with the potential for personhood, may be considered as possible candidates for assigning dignity. At this step, we can thus recognize that it is not possible to assign dignity to mere material things or animals and plants or even to mankind, groups of human beings, societies, states, the idealistic idea of a “true” human being, and so on. Furthermore, it is not possible to assign dignity to every human individual  – i.e., to every specimen of the human species. For not every specimen of the human species has, at the very least, the potential to develop personal identity. Possible objects for assigning dignity can only be human individuals that are capable of developing an own free will. We call such individuals “persons.” Nevertheless, by definition, persons do not necessarily need to be human. It is theoretically possible that there are non-human persons. The only possible objects that we may assign dignity to are persons regardless of whether they are humans. Still, as of now, we do not know of any other species except for the human species that can emerge as persons. This is why it does not make any practical difference whether we talk about human dignity or personal dignity. But if we want to talk correctly, we must assert that there is no dignity of the human being but only dignity of the human person. If we consider human beings as things that have extrinsic or intrinsic values, we have to recognize that it is not possible to assign these kinds of values to every human being – or, at least, to every human person – at the same time. There are always only some human beings that we consider as having extrinsic or intrinsic value for us. We are not interested in hiring all mankind as workers and we do not love every person in the world as we love our own children. In contrary, the idea of human dignity can serve as the foundation of human rights only if it is possible to assign dignity to every human person in the world regardless of whether we know them or whether we have a relationship with them and regardless of the quality of a given relationship. Only under this condition is it possible to establish human rights as general rights – i.e., as rights of every human person. How is it possible to assign dignity to every human person in the world?

93 5.4 · “Me-Dignity” and General Human Dignity

5.4

“ Me-Dignity” and General Human Dignity

I want to start with the most familiar person I know. That is myself. I am aware of myself as the author of my will and I appreciate this authenticity in the absolute sense because it allows me to understand myself as someone and not only as something. Consequently, I know that there is at least one human being to whom I can assign dignity. This is myself. I hope you can do the same for yourself. But if I am talking about my dignity and if you are talking about your dignity we are not talking about human dignity but only about what I call “me-dignity.” The sum of “me-dignity” does not make for general human dignity. I can only talk about human dignity if I can assign dignity not only to myself, but also to every other human person. I can assign dignity to every other person only if two conditions are met: 1. I must understand other persons as authors of their own will. This condition is not problematic because every kind of communication of thanking or blaming another is based on that condition. 2. I must regard the authenticity of others as absolute as I regard my own authenticity absolutely. The reason why I regard my own authenticity as absolute is because such is a required condition for the possibility of my being aware of myself as someone and not just as something. Therefore, I can regard the authenticity of others as absolute valuable only if the authenticity of others is in the same way and with the same influence a required condition of my self-awareness of being someone and not just something. At this point, the philosophical argumentation about the concept of human dignity has come to an end. From a pure philosophical standpoint, there is nothing more to say. The concept of human dignity has been linguistically and philosophically analyzed. Let us summarize the results. The concept of human dignity refers to an absolute value judgment. The only thing that can be and must be considered an absolute value is personal authenticity. Philosophy demonstrates that it is not possible to consider your own personal authenticity as being other than absolute. The philosophical evidence for this is a transcendental argument. The

Generalization

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5

Equiprimordiality

absolute value of one’s own personal authenticity is the condition of the possibility of any evaluation, whatever the kind. Philosophy can also teach us that the personal authenticity of others can only be an absolute value for me if the personal authenticity of others is exactly in the same way like my own personal authenticity the basis of my self-­ awareness as someone and not just as something. Unfortunately, however, it is not possible to set out transcendental arguments for the fact that our self-­recognition as persons depends on the recognition of other persons as persons. Therefore, there can only be one way to deliver the requisite evidence. And this is the empirical way. We need empirical arguments in order to show that the personal identity of others is the needed prerequisite for our self-awareness as someone and, consequently, for our own sense of personal identity. Again, this is not a philosophical question anymore, but an empirical one. So, if I want to demonstrate the idea of human dignity as the adequate foundation of human rights I need to set up an empirical thesis and I need to provide empirical evidence to support this thesis. The appropriate empirical thesis that is sufficient and adequate in order to justify the generality of human dignity is the following:

»» My authenticity and the authenticity of others are equiprimordial.

Fichte/Hegel

Equiprimordiality means that the existence of two entities depends on each other because the first entity can only exist if the second entity exists and the second entity can only exist if the first one exists. Both of them are required conditions for the possibility of each other. Either both of them exist or neither of them do. So, both of them can be considered as two sides of the same coin. If this thesis is true, it then follows that it is not possible to regard my authenticity as absolute if I do not also regard the authenticity of others as absolute. Put differently, if I do not regard the authenticity of others as absolute then I cannot regard my own authenticity as absolute. I hope that you understand the importance of this thesis. The relevance of the idea of human dignity as a sufficient principle for the foundation of human rights depends on whether this thesis is true or false. It is interesting to note that the equiprimordiality thesis is not really new. Rather, it is deeply rooted in the tradi-

95 5.4 · “Me-Dignity” and General Human Dignity

tion of philosophy, in particular in the philosophy of the so-called German Idealism of the nineteenth century. Historically, the first philosopher who defended a kind of equiprimordiality thesis was Johann Gottlieb Fichte, who developed this idea in the context of a foundation for the concept of law and legal relationship. Much more famous but also much more unclear and very difficult to understand is the chapter “Master and Slave” in Georg Friedrich Hegel’s book Phenomenology of Spirit. Both philosophers thought they would develop a pure philosophical argument. Nevertheless, they went wrong insofar as the equiprimordiality thesis does not refer to a pure analysis of a concept. It does not deal with language but with particular phenomena in the real world. Fichte and Hegel claimed an empirical argument without any empirical evidence. The argument was nevertheless very convincing for many intellectuals because it met a deeply rooted intuition. Intuitions, however, are not proofs and therefore we cannot avoid searching for empirical evidence. Still, Fichte and Hegel did not go completely wrong. We will see that empirical evidence must be contemplated through philosophical considerations. But this is the second step of the argumentation. First, we have to look for empirical evidence. Many philosophers begin to severely suffer if their the- Empircism and ories depend on empirical evidence. They share the opin- Philosophy ion that philosophical insights are always absolutely certain while empirical knowledge is always subject to the risk of error. Therefore, they think that philosophical results must always be independent from empirical evidence. I do not think that philosophical insights are always absolutely certain. I believe that philosophy is also a ­matter of error. But it is true that philosophy is not an empirical science. The analysis of language does not expose the facts of the world but only the structure of our thinking. Therefore, the scope of philosophical insights is very limited. Philosophy never leads to an insight about the reality of the world outside of our own thoughts about the world. Philosophy can therefore only prepare the empirical research. Comparatively, empirical sciences depend on an adequate formulation of its own problems and questions. Philosophy can help identify adequate formulations but it cannot help to answer the questions of the empirical sciences. The question of the meaning of the concept of human dignity is a philosophical question. But whether our self-­

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awareness as someone and not only as something depends on recognizing and appreciating the personal identity of others is an empirical question. In the next lesson, I will present some empirical evidence that seems to me to be sufficient to prove the equiprimordiality thesis. At the end of this lesson, I want to discuss another question. What should we do if the empirical evidence for the equiprimordiality thesis should fail?

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5.5

Alternative Interpretation

The Risk of Empirical Error

With regard to this case, some legal philosophers think that they must interpret the concept of human dignity in another way. They think that they do not have any alternative because the human dignity principle was established in international law and, as jurists, they have to respect the legal text. There are some other interpretations. One of them is to simply consider the concept of human dignity as a collective name for the sum of all human rights. This solution is obviously a stopgap which is not very convincing. The concept “human rights” is already a collective that embraces all the particular human rights. It is a meaningless duplication to introduce one collective (human dignity) to cover another (human rights). Other philosophers claim that the human dignity principle would be a particular human right of its own. This is also not very convincing simply because international law deals with human dignity as a principle from which human rights can be derived rather than as a human right among others. If our research for empirical evidence in favor of the equiprimordiality thesis should fail, we should be so honest as to confess that there is nothing in reality that underlies the concept of human dignity. In such a case, the concept of human dignity is an empty concept that is inadequate foundation for human rights. The fact that a concept is empty—i.e., that there is nothing in reality that underlies the concept—does not allow for a change in the meaning of the concept. This can be shown by the example of a unicorn. This concept is defined by the elements of being an animal that looks similar to a white horse but with a spiraling horn on his forehead, which can only be seen and captured by a virgin. According to the prevailing opinion, unicorns are mythology and do not exist in reality. Nevertheless, this does not give us the right to change the meaning of the concept “unicorn.” If we change the

97 Reading Recommendations

meaning of the word “unicorn,” we would lose the opportunity to say that unicorns do not exist. This shows that the meaning of a concept and whether there is something in reality that meets the concept are different questions and the latter may not influence the former. The same thing also occurs with the concept of human dignity. If our empirical claim of the equiprimordiality thesis is proven to not be true because empirical research can show that either I can develop personhood and an estimating relationship to my personhood without being recognized as a person by others or that I can maintain my own personhood even if I disregard and ignore the personhood of others, then we would must conclude that it is not possible to issue an absolute value judgment of the personhood of others and that therefore nobody can regard the personhood of others as absolute valuable. In such a case, we would say that human dignity does not really exists. Instead, human dignity would be a mirage, a fata morgana, a pure ideology that is not suitable to deliver a foundation for human rights. Thus, we see that the justification of human rights through the principle of human dignity stands or falls with the truth of the equiprimordiality thesis. This will be the subject of the next lesson. ??Do you still remember? 5.1 The word “dignity” refers to a certain category of values. Which categories of values can be distinguished? Explain the differences in a few words the differences. 5.2 What is meant by personal identity? 5.3 Why can personal identity be considered as something with absolute value? 5.4 Explain the equiprimordiality thesis in a few words.

For the answers, see 7 Chap. 21.  

Reading Recommendations Austin, John L.: How to do things with Words. Oxford: OUP 1962 Brugger, Winfried/Stephan Kirste, Stephan (ed.): Human Dignity as a Foundation of Law. ARSP-Beiheft 137 Stuttgart: Franz Steiner Verlag 2013 Fichte, Johann Gottlieb: Grundlage des Naturrechts nach Principien der Wissenschaftslehre, 1796, 1st chapter. English: Foundation of Natural Rights, Cambridge: CUP 2000, Chapter 1, http://assets.­ cambridge.­org/97805215/73016/sample/9780521573016ws.­pdf.

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Forschner, Maximilian: Marktpreis und Würde oder vom Adel der menschlichen Natur. In: Henning Kössler (ed.), Die Würde des Menschen, Erlangen: Universitätsbibliothek 1997 Hegel, Georg Friedrich: Phänomenologie des Geistes. English: Phenomenology of Spirit, English/German by Terry Pinkard 2010, Chapter “Mastery and Servitude”, https://www.­marxists.­org/reference/ archive/hegel/works/ph/pinkard-translation-of-­p henomenology.­ pdf Kant, Immanuel: Grundlegung zur Metaphysik der Sitten. Riga 1786. English: Foundations of the Metaphysics of Morals, translated by Thomas Kingsmill Abbott – http://www.­gutenberg.­org/dirs/ etext04/ikfpm10.­txt Macki, John Leslie: Ethics. Inventing Right and Wrong. Harmondsworth: Penguin Books 1977 McNaughton, David: Moral Vision. An Introduction to Ethics. Oxford: Blackwell 10th ed. 2001 Putnam, Hilary: Werte und Normen. In Wingert/Günther (ed.): Die Öffentlichkeit der Vernunft und die Vernunft der Öffentlichkeit. Festschrift für Jürgen Habermas Frankfurt/M: Suhrkamp 2001 Tiedemann, Paul: Human Dignity as an absolute Value. In Winfried Brugger/Stephan Kirste (ed.), Human Dignity as a Foundation of Law. ARSP_Beiheft 137 Stuttgart: Franz Steiner Verlag 2013 Urmson J.O.: On Grading. In Urmson, A. Flew, Logic and Language 2.nd series, Oxford 1953 pp. 159–186) Von Wright, Georg Henrik: Neue Überlegungen zur Präferenzlogik. In v. Wright: Normen, Werte und Handlungen. Frankfurt/M: Suhrkamp 1994

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The Human Dignity Principle II Contents 6.1

The Equiprimordiality Thesis – 102

6.2

 ependence on Passive Recognition D of Personhood – 103

6.3

 ependence on Active Recognition of D Personhood – 108

6.4

Verification or Failing of Falsification? – 113

6.5

 he Generality of the Equiprimordiality T Thesis – 114

6.6

Human Dignity in Cases of Doubt – 116 Reading Recommendations – 119

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_6

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Analysis of the Concept “Human Dignity” The analysis of the concept “human dignity” consists of two parts. Part I concerns the philosophical analysis, i.e., the definition of the term. Part II concerns the empirical analysis, i.e., the question whether the concept “human dignity” refers to reality. If there is a reference to reality, the concept is empirically saturated and therefore sufficiently qualified as the foundation of human rights. Otherwise, the concept is empty and under no circumstances qualified as a foundation of human rights.

6

The Generality of the Human Dignity The generality of human dignity requires that every person must evaluate not only her own personhood as absolute but also the personhood of every other person. The personhood of another person only has absolute value for me if my own personal authenticity depends on the personal authenticity of others. This is true only if the equiprimordiality thesis is true.

The Equiprimordiality Thesis The authenticity (personal identity) of any person and the authenticity (personal identity) of any other person are equiprimordial. This is an empirical hypothesis that must be confirmed or refuted by empirical evidence.

Empirical Evidence 1. If the equiprimordiality thesis is true then the development of personal authenticity by A must be dependent on the recognition of A as person by B. If this is the case, then B’s not recognizing A as a person may lead to a developmental disability of A with regard to their personal identity. Indeed, when others fail to recognize a person as such, the person can become incapable of developing a healthy sense of personal identity.

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Evidence: Borderline Personality Disorder (BPD) 2. If the equiprimordiality thesis is true then the subject that is supposed to develop personal authenticity (A) must be capable of identifying other persons as such before it identifies himself or herself as a person. Otherwise, the subject would not be able to understand another’s recognition of itself. (Pure things cannot recognize.) Indeed, human babies are capable of identifying other persons as persons. They naturally possess a sense for personhood. Evidence: Empirical Baby Research and the results of Developmental Psychology 3. If the equiprimordiality thesis is true, a person can lose her sense of personal authenticity if she is not recognized as a person in either the initial developmental period of personal identity that occurs when she is a child or at any point throughout her life. Indeed, it is possible to deprive a person of her sense of personal identity by attacking her authenticity through torture, rape, or deprivation of any self-control. Evidence: Post-Traumatic Stress Disorder (PTSD) 4. If the equiprimordiality thesis is true, a person suffers serious damage to her sense of personal authenticity when she does not respect the personal identity of others in either the initial developmental period of personal identity that occurs when she is a child or at any point throughout her life. Indeed, persons who cease to respect the personal identity of other persons by attacking their authenticity may suffer serious damage to their own sense of personal identity. Evidence: (a) The feeling of shame that tends toward suicide; (b) the feeling of guilt that makes persons able to survive while at the same time producing intense pain for them; (c) serious neuroses which occur when persons try to avoid the feelings of shame or guilt. Tillich: “Neurosis is a method to avoid non-being by avoiding being.”

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The Limited Range of Empirical Evidence Empirical research only focuses on the more or less close relationships between persons. It seems to only show that one’s own personal identity depends on mutual recognition within a limited reference group (baby and its caregivers, adult person and those who encounter them.). So, it does not seem to be proved that the personal identity of a particular person depends on the mutual recognition of all persons all over the world. This would lead to the result that there is only something like a “Group-Dignity” in a communitarian sense, but not human dignity as a general value. It can be shown by the means of philosophy (thought experiment “dignity certificate”) that this presumption is meaningless. It is not possible to assign absolute value to only some persons while denying the same assignation to any other person.

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6.1

Summary

The Equiprimordiality Thesis

In the last lesson, I tried to analyze the meaning of the concept of human dignity. The result was the following: Human dignity is the name or the abbreviation or the short form of a value judgment concerning the human individual. This value judgment is understood as a statement of its defendants  – whoever this might be  – according to which personhood is estimated as an absolutely valuable. Absoluteness means that the value of the estimated entity does not depend on its rank in a preference order or on its function as a means of exchange. Instead, absoluteness has an importance beyond all relative evaluation. The only entity that can be considered absolute valuable is personhood (personal identity, authenticity) because personhood is the ability to evaluate. It is relatively easy to show that, for me, my own personhood has an absolute value because it is the required condition for awareness of myself as the author of my will  – awareness of myself as someone and not just as something. Nevertheless, the absolute evaluation of my own personhood does not meet the concept of human dignity because this term refers not only to my personhood (me-dignity) but also to the personhood of every person

103 6.2 · Dependence on Passive Recognition of Personhood

(generalization). If the human dignity judgment is at all possible, it must be shown that the personhood of all others has to me exactly the same importance as my own personhood In other words, the personhood of others has absolute value just as my own personhood has absolute value to me. This is only conceivable if my own personhood and the personhood of others are equiprimordial – if they are both sides of the same coin. The equiprimordial thesis can be explained through philosophical analysis. But the means of philosophy do not demonstrate that my own personhood and the personhood of others are actually equiprimordial. For this question does not refer to the meaning of words and the analysis of ideas but to a reality outside of our language. Philosophical analysis only shows the meaning of the concept human dignity without showing that there is actually something in reality that meets the concept. Knowledge about the reality outside of our language is only available through empirical research. The philosophical analysis presents the equiprimordiality thesis as the required ­condition for the reality of the human dignity conception. Thus, it is important to show that the equiprimordiality thesis is true through empirical research. For that purpose, we have to empirically prove that there is a mutual interdependency between self-awareness and self-esteem as persons and awareness and appreciation of other persons as persons.

6.2

 ependence on Passive Recognition D of Personhood

The equiprimordiality thesis is true if there is a mutual interdependency in the recognition of the personhood of person A by others and the recognition of the personhood of others by A. This can be proved by determining what happens with the personhood of A if it is not recognized by the others around A. Indeed, it can be shown that person A suffers from a serious deficiency of personhood when there is a lack of recognition of A’s personhood by the others around A. This can be shown by the symptoms of serious psychological diseases. For example, if the potential personhood of a baby or a little child is not recognized by its caregivers, the child may develop a Border-

BPD

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line Personality Disorder (BPD – ICD-10-WHO: F60.31).1 This term refers to a personality disorder, where, in essence, a person has not developed the ability to live her life authentically—that is, she lives as something instead of as someone. BPD presents different symptoms including: 5 Out-of-control emotions 5 Unstable interpersonal relationships and self-esteem 5 Fear of abandonment 5 Self-damaging behavior 5 Impulsivity 5 Thoughts and sensitivity to rejection 5 Unusually intense sensitivity in relationships with others 5 Diffculty regulating emotions 5 Unsure feeling of one’s personal identity and values 5 Paranoid thoughts when feeling stressed 5 Severe dissociation (a particular detachment from reality; negative or dysfunctional mental constructions of phantasy in order to avoid fear and anxiety.) People with BPD are often exceptionally idealistic, joyful and loving. Nevertheless, they may feel overwhelmed by negative emotions, experiencing intense grief instead of sadness, shame and humiliation instead of mild embarrassment, rage instead of annoyance and panic instead of nervousness. People with BPD are especially sensitive to feelings of self-negation, rejection, isolation, and perceived failure. Their efforts to manage or escape from their intense negative emotions may lead to self-injury or suicidal behavior. In addition to intense emotions, people with BPD experience emotional volatility, rapid changes between depression and elation; their mood frequently swings between anger and anxiety or depression and anxiety. Impulsive behavior is common, including substance or alcohol abuse, eating disorders, unprotected sex or indiscriminate sex with multiple partners, reckless spending and reckless driving. Impulsive behavior may also include leaving jobs or relationships, running away, and self-injury.

1

ICD-10-WHO is the tenth revision of the International Statistical Classifcation of Diseases and Related Health Problems, a medical classifcation list published by the World Health Organization – see 7 https://www.who.int/classifcations/icd/en/

105 6.2 · Dependence on Passive Recognition of Personhood

People with BPD tend to have trouble seeing a clear picture of their identity. In particular, they tend to experience diffculty knowing what they value, believe, prefer, or enjoy. They are often unsure about their long-term goals for relationships and jobs. This diffculty with knowing who they are and what they value can cause people with BPD to experience feelings of emptiness and desolateness. What are the causes of BPD? According to present scientifc trends, some researchers share the opinion that certain brain abnormalities cause BPD. Nevertheless, it seems possible to empirically show that the diagnosed brain abnormalities very often are not the result of biological coincidence and that they may be caused by depriving an individual of recognition and appreciation as a person in the stages of early childhood. Statistical research shows that 70% of people who suffer from BPD were sexually abused in their early childhood. 50% experienced physical violence. Further, 80% of the adults with BPD report instances of emotional neglect in their childhood. BPD may not necessarily be caused by abuse or maltreatment. It can also be caused by the early experience of abandonment or signifcant trouble, chaos, and hostility in the family or by the experience of a parenting style that is characterized as rigid loveless control or an overly tight bond that leaves no room for independent development of personality. According to the so-called psychologically based Attachment Theory, individuals very often experience BPD symptoms if they received less attention or sensitive care, if their needs and feelings were ignored, if they could not rely on their caregivers. In other words, people tend to suffer from BPD if they were not recognized and appreciated as persons that must learn to lead their lives on the basis of their own considerations and refections  – as someone and not just as something. What we have shown so far is that the development of personhood during the early stages of childhood depends on the recognition and appreciation of the child’s (potential) personhood by other persons. Nevertheless, such evidence is not suffcient for the verifcation of the equiprimordiality thesis. For it could be possible that the process of developing personhood initially depends on recognition by others, but that we become independent of such when our personhood has developed. The Borderline Disorder argument does not exclude the possibility that personhood – once developed – is a capacity that we can

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maintain without the support of others. If this is true than the value of personhood of others would only be absolute during the time of our own psycho-social development in early childhood, and it would cease to be absolute once the psycho-social development of personal identity has fnished. The value of personhood of others only remains absolute if throughout our lifetime we continue to depend on the recognition and appreciation of personhood by others. In order to show this dependence, we need other empirical fndings. But again, the results of psychological research can deliver these fndings. Accordingly, we must look at what happens when someone who has already developed personal identity and is already able to manifest their own free will on the basis of their own considerations and refections is treated as a mere object or thing by her fellow humans. Psychiatric traumatology teaches us what happens in such a situation. It leads to another very specifc disorder that is called Post-Traumatic Stress Disorder. This term refers to a personality disorder where, in essence, a person has lost the ability to live her life authentically – as someone and not just as something. Post-Traumatic Stress Disorder (PTSD  – ICD-10 WHO: F43.1) is a mental health condition that is triggered by a terrifying event such as sexual assault, warfare, serious injury, or threats of imminent death. PTSD symptoms are generally grouped into four types: intrusive memories, avoidance, negative changes in thinking and mood, and changes in emotional reactions. Symptoms of intrusive memories may include: 5 Recurrent, unwanted distressing memories of a traumatic event 5 Reliving the traumatic event as if it were happening again (fashbacks) 5 Upsetting dreams about the traumatic event (nightmares) 5 Severe emotional distress or physical reactions to something that reminds the person of the traumatic event Symptoms of avoidance may include: 5 Trying to avoid thinking or talking about the traumatic event 5 Avoiding places, activities or people that remind you of the traumatic event

107 6.2 · Dependence on Passive Recognition of Personhood

Symptoms of negative changes in thinking and mood may include: 5 Negative feelings about oneself or other people 5 Inability to experience positive emotions 5 Feeling emotionally numb 5 Lack of interest in activities once enjoyed 5 Hopelessness about the future 5 Memory problems, including not remembering important aspects of the traumatic event 5 Diffculty maintaining close relationships Symptoms of changes in emotional reactions (also called arousal symptoms) may include: 5 Irritability, angry outbursts, or aggressive behavior 5 Always being on guard for danger 5 Overwhelming guilt or shame 5 Self-destructive behavior, such as drinking too much or driving too fast 5 Trouble concentrating 5 Trouble sleeping 5 Being easily startled or frightened 5 Suicidal thoughts It is interesting to note that many of these symptoms are very similar to those of BPD. That, in turn, shows that the capacity of personhood can be lost. Personhood is a fragile possession. As I mentioned above, PTSD is caused by the experience of severe psycho-traumata. Psycho-Traumata are defned as situations where a person loses any kind of selfcontrol. Riedesser & Fischer defne psycho-trauma as the violation of the personal ability of self-determination and of the room for development of a personality. Such a violation occurs in situations where an individual is exposed to an overwhelming power that does not allow reasonable reaction and makes the individual completely unable to act. This is, for example, a situation in which a woman is raped. Other situations include those where soldiers are under fre or where someone is tortured. In other words, PTSD occurs as a result of situations where human individuals are not recognized and appreciated as persons that can lead their own lives on the basis of their own considerations and refections. PTSD occurs as the result of situations where someone is no longer recognized as someone, but as something. PTSD can occur not only as a result of disregard and disrespect, but also as a result of a horrible

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Resilience Result

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natural disaster or an accident, where someone experiences a complete loss of control or infuence. Nevertheless, for our purpose it is enough to show that even disregard or disrespect of someone’s personhood can lead to PTSD. Furthermore, there is suffcient evidence indicating that it is much more diffcult to heal someone suffering from PTSD caused by other human beings as opposed to cases involving natural causes or accidents. It may be useful to point out that not every soldier who was under fre and not every woman who was raped subsequently suffers from PTSD. Many people who go through traumatic events have diffculty adjusting and coping for a time without developing PTSD. With time and good selfcare, they usually get better. Those people have the capacity of resilience. The scope of an individual’s resilience depends on their life experiences before the traumatic event. Not every traumatic event leads to PTSD in every person. But every person will suffer from PTSD if the level of the traumatic event is severe enough. It is possible that an individual who suffered severe torture nevertheless does not subsequently suffer from PTSD. But torturer can bring every person to this state if they increase the torture suffciently. So, we can learn from the empirical phenomenon of the PTSD that persons can lose their personhood such that they are no longer someone, but something. This shows that we depend on the recognition and appreciation as persons by other persons not only during the stages of early childhood but also throughout our lifetime.

6.3

Proto-persons

Dependence on Active Recognition of Personhood

The equiprimordiality thesis claims that personhood is based on mutual recognition and appreciation. Mutuality means that we cannot develop or maintain our own personhood when we do not recognize the personhood of others. But what about a baby? Is a baby able to recognize the personhood of its caregivers? A baby or a small child is not able to determine its behavior on the basis of an own free will, i.e., on the basis of their own refections and considerations. Therefore, we cannot say that babies or small children are persons in the meaning of the term “person” that I have developed above. But how is it possible to recognize the personhood of others without frst being a per-

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son? I think it is not possible to recognize the personhood of others without being a person because only persons can know what is meant by personhood and it is necessary to know what personhood is in order to recognize personhood in another person. That seems to preclude the ability of babies to recognize their caregivers as persons. Nevertheless, we know from the phenomenon of BPD that it is crucial to be recognized as a person in the early stages of life, otherwise a child may never develop the capacity of personhood. But can we imagine that the recognition as person by caregivers can have any effect for the baby if the baby cannot understand this recognition as the recognition as person? I think it is not possible to understand being recognized as a person by other persons if one does not have any understanding of what is meant by personhood. Therefore dogs, horses, and cars cannot develop personhood even if they are recognized as persons. But the baby can. How is this possible? Let us consider the problem from the point of view of the caregivers. How should they be able to recognize the personhood of the baby when the baby has yet to develop personhood? Recognition can only have as its object some aspect of reality. It is not possible to recognize something that does not exist. If there is no such thing like the personhood of the baby, then caregivers could not recognize it. This suggests that treating a baby as a person is not really an act of recognition and appreciation, but rather an act of producing the personhood of the child. If it is considered an act of producing and not an act of recognition, we cannot talk about a relationship of mutual recognition in the stages of early childhood. So, there is not only a problem from the perspective of the baby, but also from the perspective of the caregivers. Empirical research comes into the play at this point. According to developmental psychology and empirical baby research, we have empirical evidence for the fact that babies naturally possess a sense for personhood. Like a radar, they scan the world to detect personhood and they fx their attention upon those objects in their environment in which they recognize personhood. Thus, although babies do not have the capacity of an intellectual understanding of personhood, they are naturally endowed with the capacity to feel and to identify personhood wherever they meet it. This is why we can state that babies can recognize and appreciate the personhood of others. According

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to empirical baby research, it is not adequate to consider a human baby a living entity without personhood. We must instead state that babies are considered proto-persons. They are not able to produce their own will. But they are already capable of recognizing the personhood of others and identifying these others as a source from which they can learn to become persons themselves. From this fact follows that treating a baby as a person is not simply an act of producing the personhood of the baby. It is rather an act of support through real, interpersonal communication. It is thus an act of recognition. So, we see that there is a real mutual recognition and appreciation of personhood between a baby and its caregivers. Not only do babies receive recognition of their personhood by their caregiver, but caregivers also receive recognition of their personhood by babies. This is why the caregivers of babies ordinarily do not have a problem treating the babies as persons by speaking to them, laughing with them, or generally communicating with them as persons. Caregivers can of course deny recognizing babies as persons. But if they do so, it will have the same effect as if they disregarded the personhood of an adult person. But this is exactly the question that we have to answer. Are there negative effects in terms of the personhood of a person who decides to disregard and disrespect the personhood of fellow humans? So far as I can see, there is no evidence for the presumption that persons lose their sense for personhood by treating others as non-persons. In particular, the effect for the acting person is not necessarily the loss of the ability to lead their own life on the basis of their own will, steered by their own considerations and refections. The damage is rather that the person who disregards the personhood of others, loses the ability to appreciate their own personhood. She feels a certain kind of self-alienation. She becomes an alien to herself. This situation produces a huge amount of suffering. We can identify three different variants of suffering. All of them have the same source. These are the feelings of shame, guilt, and variants of displacement in the form of neuroses. Let’s start with the feeling of shame. Shame is the feeling of fundamental loss of self-esteem. The individual who feels shame, despises and condemns himself. Nevertheless, shame is a social feeling. It is always related to other persons. It is not necessary that the other person is a real person or that real persons have real knowledge

111 6.3 · Dependence on Active Recognition of Personhood

about why the respective individual feels shame. The individual who feels shame, imagines the others. Psychoanalysis speaks of this phenomena in terms of the Imagined Other. So, the individual who feels shame, takes the position of the Imagined Others and delivers from this point of view a value judgment about himself. According to this value judgment, the individual feels himself as having no worth and as someone who is to be despised. The feeling of shame is always connected with a huge fear of being excluded from the community with others and the thought that it would indeed be reasonable and appropriate to be excluded from the community because of the respective person’s self-perceived lack of value. So, the feeling of shame necessarily implicates the recognition and respect of other persons. The feeling of shame disclaims the decision of a person to treat others as non-persons and shows that, for that person, recognizing and respecting others as persons is unavoidable. The feeling of shame is so fundamental that the respective individual is incapable of being aware of her own personhood. He loses trust in his own ability to produce a free will and to act on the basis of his own considerations and refections. Someone who feels deep shame wants to literally disappear. He wishes the ground would open and swallow him up. He feels completely unable to act. So to speak, he turns to stone or becomes petrifed or freezes to ice. The ultimate consequence of a deep feeling of shame is suicide because this is the only way to completely disappear. Indeed, sometimes we hear about cases where a criminal committed suicide because he was so overwhelmed with shame the he could not bear to live anymore. But committing suicide is not the rule. Most people who feel shame develop a strategy that makes them capable of avoiding suicide and continue with their lives. The most appropriate strategy is the transformation of the feeling of shame into the feeling of guilt. I think all of us know the feeling of shame, but obviously we did not commit suicide. We were able to continue living because we were able to transform our feelings of shame into feelings of guilt. When analyzing the feeling of guilt we can identify three elements. (1) The frst element of guilt is repentance. There is a certain similarity between shame and repentance. Repentance, like shame, is the result of a negative value judgment about oneself. Contrary to shame, this judgment does not refer to the entire being of oneself. It only refers

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to one’s particular bad actions. With feelings of repentance, the individual is capable of distinguishing between himself and the actions he has done. The feeling of repentance is a kind of mourning about one’s own bad actions. The individual does not feel completely worthlessness, but rather a kind of mourning for its actions. The feeling of repentance allows for the condemnation of actions while the person herself is rescued from condemnation and contempt. This allows the individual to remain capable of acting so that he may work towards a reconciliation with himself. (2) The second element of the feeling of guilt is confession and the wish to compensate. This second element is a feeling of desire, namely, the desire to become worthy of reconciliation. This feeling, like shame, is a social feeling. It is not possible to reconcile with one’s own actions without reconciliation with those who were harmed through the evil actions. The desire to become worthy of reconciliation leads therefore to the drive to compensate for the damage to the victim and to confess in front of the victim. The confession is the request not to be identifed with the bad actions that the agent committed. It is connected with the request to trust again that the agent is a reliable person, a good person and not an evil one. (3) The third element of the feeling of guilt is the request for forgiveness. If the respective person does feel as though she has reached a status of being worthy of reconciliation, she will ask for forgiveness. As we have seen, the feelings of shame and guilt are social feelings. They implicate the recognition and the respect of other persons as persons. So again, what happens if a developed person decides to disregard the personhood of others? There are two possibilities. Either the person in question commits suicide because she is unable to overcome the feeling of shame, or the person feels guilt. In both cases the person understands that ignoring the personhood of others is incompatible with her own personal identity. Perhaps you will object to this argumentation by showing that many people ignore and disregard the personhood of others but do not show any symptom or manifestation of shame or guilt. Sometimes they even seem to be proud of their crimes or they otherwise remain confdent and continue living a normal life. This seemingly suggests that the equiprimordiality thesis is wrong.

113 6.4 · Verifcation or Failing of Falsifcation?

Nevertheless, we must consider that the transformation of the feeling of shame into the feeling of guilt is not the only strategy to avoid suicide. There are several other strategies. All of these alternatives are a kind of psychical displacement. The feeling of shame is displaced by any other feeling like anxiety, rage, aggression, depression, phobia, or by obsessive behavior patterns like excessive pedantry, excessive hand washing, etc. None of these feelings or behaviors are adequate. Therefore, they produce diffculties and trouble for the respective agent or for the individuals who are related to him. The psychoanalyst Sigmund Freud coined the concept of neuroses to describe these different strategies. Such unconscious displacements have the advantage that the person concerned is not forced to suffer from shame and guilt. Nevertheless, displacement inevitably leads to other forms of suffering. It is possible that the strange behavior of a person brings her into confict with her fellow humans and that she therefore suffers from this confict. Nevertheless, it is also possible that the person does not really suffer herself but that she causes others to suffer through her tyranny or unreliable behavior, etc. The deeper problem of neuroses is that the connection between the symptoms and the causes is unconscious while in the case of shame and guilt the connection is conscious. The latent aspect of the causes of neuroses makes it much more diffcult to free oneself from neurotic suffering. In any case, the benefts of the neurotic alternatives to shame and guilt is most impressively expressed by the saying of Paul Tillich: “Neurosis is the method of avoiding nonbeing by avoiding being”.

6.4

Verifcation or Failing of Falsifcation?

The reference to shame, guilt, and neuroses confrms the guess that is it not possible to ignore or disregard the personhood of others without producing unacceptable suffering to oneself and/or self-alienation. Nevertheless, this does not represent particularly strong evidence. A rigorous proof would need to show that it is objectively impossible to maintain one’s own personhood by disregarding the personhood of others. Empirical evidence can never provide such a complete proof. To perform such empirical

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evidence, one would have to search the entire world for a case where a person disregards and ignores the personhood of others while remaining healthy and free from suffering. Such a proof is hardly possible. We must recognize that empirical evidence never proves general hypotheses. Verifcation in that sense is not possible. Therefore, we should follow the idea of the so-called Critical Rationalism as it was developed by the Austrian/ British philosopher Karl Popper and the German philosopher Karl Albert. According to this approach, we are justifed in accepting an empirical thesis as long as all attempts to falsify it have failed. In our case, we have several references that confrm the thesis and we have no evidence that shows the thesis to be false. Therefore, it is rational to accept it. So, I come to the fnal conclusion. The equiprimordiality thesis is empirically well confrmed and should be considered true.

6.5

The Generality of the Equiprimordiality Thesis

Nevertheless, there is another objection to the claim that the principle of human dignity can be explained and clarifed by the equiprimordiality thesis. We have only shown so far that persons depend on the mutual recognition and appreciation (respect) of other persons for the sake of maintaining their personhood. But it does not seem to be proved that persons depend on the recognition and appreciation of all other persons in the world. What seems to be proved so far is only a concept of human dignity that applies to myself and to the persons in my narrow environment. The concept might apply to the family or to the circle of friends or perhaps to the neighborhood. But it seems not to apply to every living entity or at least to every human being who is endowed with personhood. The idea of human dignity, nevertheless, can only function as an adequate foundation of human rights if it applies to every member of the human family or, at least, to every member of the human family who is endowed with reason and conscience and is therefore a person. A closer look shows, however, that the equiprimordiality thesis is adequate enough to construct the principle of human dignity as a general principle that applies to every

115 6.5 · The Generality of the Equiprimordiality Thesis

. Fig. 6.1

Dignity distribution desk. (© Sophie Reinisch)

person in the world. At this step of the argumentation, we move again to the feld of philosophy. Here, we do not use empirical arguments anymore but a pure transcendental argument. I want to demonstrate this argument in the shape of a thought experiment. Please imagine that you are in a position to decide to whom you want to ascribe human dignity or, in other words, whose personhood you want to regard as an absolutely valuable (see . Fig.  6.1). Let’s say you are sitting behind a desk and in front of you stands a huge queue which embraces the entire mankind. One by one appear before your desk and you decide whether or not to give them a certifcate of personal recognition. The frst individual before your desk is your mother. Given the case that your mother was your primary caregiver in your childhood and that you therefore love her, you do not hesitate to give her the certifcate. The next individual is someone you have never met before and that you will never again meet in the future. Whether he exists makes no difference to your personal life. Will you give him the certifcate? Perhaps you think that it is more effective for you to withhold the certifcate because giving the document would lead to the consequence that you are obliged to respect the human rights of this unknown and

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uninteresting individual. Why should you take on this burden? So, you withhold the certificate. The next individual before your desk is a very famous criminal, let us say a cruel terrorist who appeared several times on YouTube killing innocent people by beheading them. Will you give him the certificate? Perhaps you think that such horrible humans should be considered monsters and not persons and therefore you do not hesitate to withhold the certificate of personhood. Now the question arises: is it possible to regard the personhood of your mother as an absolute while denying to regard the personhood of the unknown individual or of the criminal absolutely? Transcendental analysis shows that such a different treatment of your mother and the other persons is conceptually untenable. The mistake lies in the assumption that it is possible to decide to whom you want to ascribe dignity and to whom you will not. This is not possible because in order to make such a decision you need criteria to distinguish the two categories. These criteria have nothing to do with the fact that the individuals in front of your desk are persons or at least potential persons. Personhood is not the determinative criterion, something else is. This “something else” is necessarily and unavoidably something of relative value, e.g., your use, your interest, your love, your fear, or any other criterion of preference. Exactly the same criteria that guides your decision about your mother is relevant to the decisions about any other person. So, you recognize and respect the personhood of your mother only because she is the object of your love or because she is useful for you. In other words, the estimation of the personhood of your mother is no longer absolute, but relative. Put differently, if you only esteem one person in the world absolutely, you cannot avoid esteeming every other person in the world ­absolutely.

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Embryos

Human Dignity in Cases of Doubt

Human dignity refers to the absolute value of personhood. The bearers of human dignity are therefore persons and – as we have seen above – proto-persons. Nevertheless, there are some controversial cases where it is contested whether the respective individual can be considered a person. This is especially true for human embryos. Should human embryos be considered bearers of human dignity?

117 6.6 · Human Dignity in Cases of Doubt

Are they included in the human dignity judgment? Yes, I think they have to be considered as persons. Killing an embryo is always connected with the value judgment that the person who is going to emerge from the embryo is not worth of existing. Denying as much is based on intrinsic or extrinsic evaluations of an embryo’s capacity to develop personhood and therefore not in terms of the absolute value that is indicative of personhood. What about the case of an individuals that suffer from dementia? Are they still persons or does the disease take away their personhood? Indeed, in the final stages of the disease we can hardly talk about a person because the disease completely eliminates an individual’s ability to determine oneself on the basis of his or her own considerations and reflections. But not every individual that suffers from dementia has lost his or her personhood. Personhood is a threshold value concept. There are no grades of personhood. Rather, someone either has personhood or he does not. In most cases, people with dementia are still considered persons. And what about an individual in a prolonged coma? Is he still a person? As long as we can expect the individual to wake up and continue to live his life as a person, he must be considered, at the very least, a potential person like an embryo. This shows that the interpretation of the concept of human dignity on the basis of personhood as an absolute value and on the basis of the equiprimordiality thesis leads to a generalized concept of human dignity. Human dignity is therefore an adequate principle to serve as the foundation of universal human rights. Many philosophers object to this concept of human dignity with the argument that it does not capture all human beings, but only those who can be considered persons. They fear that from this restriction follows that humans who are not persons (anymore or from the beginning of their live) can be treated in a way that we normally consider inhumane. That is to say, they conclude that according to this theory it is permissible to kill or torture non-personal human beings. Accordingly, they think that even non-personal human beings should be protected against maltreatment. But these objections are not very convincing. First, just because only personhood can be considered an absolute value does not mean that non-­ personal human beings can be treated arbitrarily and that there are no moral standards toward them. This is not the

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Freedom of Will Freedom of Actions

case as long as we assign an intrinsic value to them. Second, their argument shows that these philosophers take for granted that non-personal human beings may not be arbitrarily killed or tortured. This conviction does not depend on a certain conception of human dignity because they likely understand what is morally required and what is morally evil. There is no contradiction between the idea of personhood as an absolute value and the idea that even non-personal human beings may not be treated inhumanely. And of course, there is also no opposition concerning the moral conviction that even animals may not be treated cruelly. We cannot maintain the absolute appreciation of our own personhood without the absolute appreciation of the personhood of other persons. We cannot appreciate the personhood of any particular person as absolute without appreciating the personhood of every person as an absolute. This shows the generalized character of the human dignity principle: either we have respect for the human dignity of every human person including ourselves, or we have no respect for the human dignity of anyone including ourselves. Absoluteness means that there is no justification to prevent someone from determining his own will by his own considerations and reflections. There is no justification of the disregard of one’s own free will. From this position, one cannot conclude an absolute respect for a person’s free actions. So to speak, the point of respect of human dignity is not the freedom of action, but the freedom of will. When we address freedom of will, we talk about human dignity. When we address freedom of action, we talk about the fundamental constitutional value of liberty. There is a huge difference between liberty and human dignity because respect for liberty is relative while respect for human dignity must be absolute. ??Do you still remember? 6.1 Empirical research was introduced in this lesson to confirm the thesis that human beings can develop and maintain the ability to lead their life on the basis of their own free will only if their personhood is recognized and appreciated by others. Please describe this empirical research using a few keywords. 6.2 The equiprimordiality thesis requires that even babies or very young children must be capable of rec-

119 Reading Recommendations

ognizing and appreciating the personhood of others before they have developed their own personhood. Is there any evidence for this hypothesis? 6.3 Is there any evidence for the hypothesis that ignorance and disregard of the personhood of others leads to a weakening, undermining, or even a loss of personhood for the agent? Explain the argumentation in few words. 6.4 Through the thought experiment “Dignity Certificate,” it is possible to show that it is impossible to recognize and to appreciate the dignity of any one human person without recognizing and appreciating the dignity of every other human person. Explain this thought experiment.

For the answers, see 7 Chap. 21.  

Reading Recommendations Ainsworth, M./Bowlby, J.: Child Care and the Growth of Love. London 1965 Albert, Karl: Treatise on Critical Reason. Princeton 1985 Freud, Anna: The Ego and the Mechanisms of Defense. London 1992 Margalit, Avishai: The Descent Society. Cambridge (UK) 1996 Mayo Clinic Staff: Post-Traumatic Stress Disorder (PTSD). n.d. http:// www.­m ayoclinic.­o rg/diseases-conditions/post-traumatic-stress-­ disorder/basics/symptoms/con-20022540 NIH (ed.): Borderline Personality Disorder (BPD). n.d. http://www.­ nimh.­nih.­gov/health/topics/borderline-personality-disorder/index.­ shtml Popper, Karl: The Logic of Scientific Discovery. London 2002. http:// strangebeautiful.­com/other-texts/popper-logic-scientific-discovery.­ pdf Fischer, Gottfried/Riedesser, Peter: Lehrbuch der Psychotraumatologie, fourth ed. Munich 2016 Taylor, Gabrielle: Pride, Shame and Guilt. Oxford 1985 Tiedemann, Paul: Johann Gottlieb Fichte und die Identitätstheorie der Menschenwürde, In ARSP 103 (2017), 337–369 Tisseron, Serge: Phänomen Scham. Psychoanalyse eines sozialen Affekts. Munich 2000

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What Is a Right? – 124

7.2

What Is Meant by Having a Right? – 131

7.3

Deriving Obligations from Values – 133

7.4

Deriving Rights from Values – 136 Reading Recommendations – 138

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_7

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Derivation of Human Rights from the Principle of Human Dignity The analysis of what is meant by derivation of human rights from the principle of human dignity requires the analysis of the general structure of a human right and the examination of how the particular variables of this structure can be derived from the human dignity principle as well as how the predicate “having a right” can be derived.

The General Structure of a Human Right Is the Following

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v [ has a human right ] toward x on y of z v = entities who are endowed with personhood = persons (including, proto-persons) x = entities who are endowed with personhood and therefore share the human dignity judgment = persons. It follows that the original obligors of human rights are individual human persons and not the state. The state is not endowed with reason and conscience and cannot share value judgments. The state is only an organization of persons that should produce more effectiveness in the recognition and enforcement of human rights. Nevertheless, this organization is a very powerful and therefore potentially effective and dangerous perpetrator of human rights violations. Therefore, the state should be considered the addressee of human rights in a derivate sense. y = the specific action or omission on which v has a right. There are three different kinds of relationships: (1) right to respect, (2) right to protection, and (3) right to support. Respect: Omission of any kind of injury (tabooization). Unrestricted respect is possible for private persons as well as for the state. Protection = Defending someone against the threats of injury by third parties. Protection is possible for private persons as well as for the state, but only to a certain degree that depends on what is adequate. The state has more power of effective protection than single individuals.

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Support = Helping someone escape from inhumane living conditions. Support is generally possible for private persons to a very low degree. States can overtake the task of support to a higher degree (social state). z  =  the protection scope. From the principle of human dignity follows only one protection scope of human rights: the freedom of will (authenticity). The particular protection scopes of the particular human rights are only concretizations of the general protection scope “authenticity.” Human rights do not refer to the freedom of action.

Values and Norms The derivation of human rights from the principle of human dignity requires the derivation of norms from values. This seems, at least at first glance, logically impossible. From the fact that A prefers x does not follow that A has a right to x or that B is obliged toward A to x. Furthermore, values only refer to the person who evaluates. Rights refer to a relationship between obligee and obligor. But, according to Immanuel Kant, moral obligations are obligations toward oneself based on an inner coercion. They do not require a relationship. Therefore, it makes sense to ask whether there is a close relationship between values and obligations that can be understood as a relationship of derivation.

Obligations If in a conflict between volitions of the first order and volitions of the second order (Harry G. Frankfurt), the latter appears to the agent as a mental coercion then the agent considers the volition of the second order an obligation. Obligations refer to the absolute value of human dignity if the second order volition refers to the development and/or maintenance of personhood. Obligations that refer to personhood can be called human obligations. So, it can be shown that it is possible to derive human obligations from the value of human dignity.

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From Human Obligations to Human Rights Considering that personhood has an absolute value (dignity) for humans and that there are huge temptations that drive us to act contrary to our highest preferences which we consider human obligations, we are forced to use any available means that can help us avoid acting contrary to these obligations. One effective means to ensure our observance of our human obligations is the conferring of human rights. By conferring human rights, we subject ourselves to the criticism and control of those who are the beneficiaries of our human obligations and the potential victims in the event that we breach our duty. A further means of ensuring our fulfillment of the obligations is the transformation of moral human rights into legal human rights.

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Conferment of Human Rights The conferment of moral human rights is not a performative act in a literal sense. Rather, it is an attitude. This attitude is based on a voluntary adoption. Therefore, we can theoretically decide not to adopt this attitude. Nevertheless, recognizing the absoluteness of our human obligations while at the same time denying the conferment of human rights is irrational.

7.1

What Is a Right?

In the last lessons, I tried to clarify the concept of human dignity. So, we are now well prepared for asking how exactly human dignity can be considered an adequate principle that underlies the foundation of human rights. To recap, we saw in the fourth lesson how international law considers the founding role that human dignity plays in human rights (e.g., the preambles of the International Covenants of 1966). There, human rights are considered being derived from the principle of human dignity. Human rights are connected with human dignity by a certain kind of derivation. In this lesson, we must clarify what is meant by derivation in this context. In order to clarify the kind of link between human dignity and human rights, it is first necessary to clarify both conceptions which are supposed to be linked. So far, we have achieved an appropriate understanding of the concept of human dignity. Now we

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must analyze the concept of human rights. Consequently, the first question arises: What is a right? We can display the structure of a right in general and a human right in particular by the following way: v [ has a right toward ] x on y of z You see that there are four variables that we have to identify. Having identified these variables we can turn to clarifying what is meant by “having a right.” What is v? The first variable v relates to the beneficiary of human rights. If human rights can be derived from human dignity, then it seems to be clear that the beneficiaries of human rights are the very same entities to whom we ascribe dignity. As we have seen, these comprise of all the entities which are endowed with personhood. Entities which are endowed with personhood are called persons. Thus far, we have learned that personhood is only a potential quality of human beings. We can therefore say that human dignity relates to every human person. From this follows that the beneficiaries of human rights are all human persons. It follows that beneficiaries of human rights can only be persons and not non-persons. Human beings can only be beneficiaries of human rights if they have the property of personhood or, at least, the potential of personhood (proto-persons). It is not possible to conclude from the principle of human dignity that every human being can be considered a beneficiary of human rights, particularly for those who are neither persons nor have the potential to become a person. As I have already mentioned in the fifth lesson, many legal philosophers criticize the thesis I introduce here by arguing that a concept of human dignity that is based on the absolute evaluation of personhood is unconvincing because it does not lead to a conception of human rights that protects every human being. My counter-argument against this criticism is that the critics confuses the relationship of human dignity with human rights. They try to derive the meaning of human dignity from a certain idea of human rights instead of deriving the meaning of human rights from a certain idea of human dignity (e.g., Waldron). The meaning of the term human rights depends from the meaning of the term human dignity and not the other way round.

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Obligor of Human Rights

The second counter-argument is that it is not possible to deliver an absolute value judgment in favor of the pure human specimen. There is no transcendental argument available for such an argumentation. It is not possible to show that something else except for personhood can be considered to have absolute value. It is important to stress that the scope of this examination only concerns the foundation of human rights and not the foundation of morality and all its attending principles. It might be that there is a moral principle that requires a certain kind of respect toward every member of the human family. Whatever this principle may be, it is not part of human rights because human rights are what we can derive from the principle of human dignity and human dignity, in turn, only refers to persons. What is x? The variable x refers to those from whom the beneficiaries can expect to be benefitted. These are exactly those entities that defend the human dignity judgment. As we have seen, it is not rationally possible to not accept the human dignity judgment. Anyone who does not share the human dignity judgment would necessarily have to abandon ever being in a position to make value judgments. So, whoever is interested in his own personhood must also accept the human dignity judgment. Considering that all persons are necessarily interested in their own personhood, all persons must accept the dignity judgment, provided that they are rational. From this follows that x means every human person. Some legal philosophers share the opinion that human rights are only addressed to states and not to particular individuals much less every human person. This opinion seems to be confirmed by international law and by many national constitutions which only address human rights in terms of the state. So, we read in Article 1 German Basic Law:

»» Human dignity is sacrosanct. To respect and protect it is the duty of all state authority.

According to this view, only the State has the duty to respect the human rights as opposed to everybody respecting the human rights of everybody else. Nevertheless, there are some rare cases of constitutions which make clear that respecting human dignity is a mutual obligation for all human beings. I know two examples: namely the constitution of the German land Brandenburg and the

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Constitution of the Republic of Malawi. In Article 12 (IV) of the latter we read:

»» The inherent dignity and worth of

each human being requires that the State and all persons shall recognize and protect fundamental human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities whether or not they are entitled to vote.

The Constitution of the land Brandenburg says in Article 7 (II):

»» Everyone owes everyone the recognition of their dignity. From the principle of human dignity first follows that only human persons must respect the dignity of others because the concept of human dignity refers to a value judgment and only persons are capable of making value judgments. The state is not included within this meaning of a person. It is not a living entity that is endowed with reason and conscience. The state is only an idea in our brains, the idea of an organization of human individuals. Citizens as well as civil servants, judges, or politicians of a state act according to an internalized role that is part of the imagined idea of the state. The idea that human rights are addressed to the state as the obliged entity therefore cannot be derived from the principle of human dignity. Rather, the state should be considered a means of ­guaranteeing human rights. In order to make sure that every human person respects the human dignity and therefore the human rights of others, they establish the state as powerful means and give it the task of respecting and protecting the human rights of its subjects. It is therefore a matter of positive law whether the state is obliged to respect and protect human rights. Differently, we can say that a state which does not respect human rights is an unjust state. An unjust state functions as means for particular human individuals—those who have the power of the state—to violate the human rights of others. What is y? While discussing the points above, I used the expression “respect” without any comment. This was only done provisionally. We now turn to discussing whether “respect” is the appropriate and sufficient relation between the variable v and the variable x. One thing is clear. If the personhood of others has absolute value for me then it is a consequence for me to

Respect

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Protection

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respect the personhood of others. Respect is the basic relation between v and x. V has, in any case, a right toward x on (y =) respect. There are, however, two other kinds of relations imaginable: the relation of protection and the relation of providing aid (support). Protection means that x is not only supposed to refrain from committing any infringement of the human rights of v, but also that x is obliged to actively defend and protect the human rights of v against threatening violations by third parties. Still, the consequences of protection are not as unqualified as the consequences of respect. There are some limitations. The limits of protective activities depend on our capacities. If we are not strong and powerful enough to effectively protect the human rights of others than we are not obliged to do so. Even if we are able to protect a particular individual against a particular threat, it is not possible to protect everyone who is in need. Our capacities are thus further restricted not only by our potential or resources, but also the fact that our resources are devoted to more than one target. We have to use our time, strength, and money not only for the protection of others but also for other aims that must be achieved in order to lead one’s personal life. Criminal law distinguishes between affirmative acts and acts of omission, and evaluates each differently. Whoever violates a legally protected interest through affirmative acts always commits the corresponding offense and is to be punished for it. Nevertheless, someone who violates a legally protected interest by failing to act in accordance with a protective commitment is to be punished not for the corresponding crime but only for the failure to render aid, which is a weaker crime. Only in some exceptional cases does the law consider the failure to render aid in the same manner as if the violation had occurred through an affirmative action. Such cases are those that involve a person who has, by law or by contract, obtained the position of a guarantor of a certain result. On the level of morality, we must also distinguish these two cases. Only in some exceptional cases do we consider an omission as being of the same quality as an affirmative act. In the other cases, it is a question of appropriateness and reasonableness whether and to what extent we are obliged to protect. Finally, the consequence of protection is limited to those means which are compatible with human rights. The

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absolute appreciation of the personhood of others does not lead to the consequence that one should protect the human rights of others by violating the human rights (of third parties) oneself. In order to relieve citizens of the duty to render aid and to make the provision of aid as effective as possible, it is a good idea to transfer the task of protecting human rights to the state. Accordingly, the state is the means of effectively protecting human rights. Nevertheless, the duty of the state to protect human rights is limited as well. The duty to protect human rights is limited by the borders of the state and by the effective sphere of control. Another limitation is grounded in the restricted personal and financial resources of the state. The scope and limitations of the state’s duty to protect human rights cannot be defined with precision through philosophical means. The obligations and their defined limits are a matter of positive law. Neither can be derived from the principle of human dignity. What is true for the protection of human rights against threats from third parties is also true with regard to the question of whether and to what extent individuals or the state are obliged to help persons who live under inhumane conditions that are caused by general living conditions as opposed to the malicious acts of third parties. This is also a question whose answer cannot be derived solely from the principle of human dignity. Here, too, the limits of capabilities, potential, and the multitude of targets are taken into account. So, from a purely moral point of view we can conclude that there is only a right to respect the personhood of the owner of the right while the protection of human rights against threats by third parties or the provision of aid to escape inhumane living conditions depend on complex empirical conditions that can only be addressed through positive law. What is z? The variable z refers to a certain status of the beneficiary. Within this field, derivation from the human dignity principle plays the most prominent role. Derivation from the human dignity principle leads to the result that human rights are exactly those rights which are supposed to protect the status of a person as person. Human rights protect personhood. Personhood is the ability to lead one’s own life on the basis of authenticity. Authenticity is what we can call free will. Free will is based on one’s own consider-

Aid

Protection Scope

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ations and reflections and free from all kinds of manipulation. It is important to stress that the function of human rights are neither to establish equality nor to protect the individual’s freedom of action. Thus, we must distinguish between freedom of action and freedom of will. It is only possible to derive from the human dignity principle rights that protect the freedom of will, while the same is not necessarily true for freedom of action. From where does this difference arise? Freedom of action is a person’s freedom to do whatever he or she wants to do. Limits to freedom of action are limits to external behavior. In principle, a limitation on the freedom of action does not infringe personhood. Freedom of action is not a matter of human rights. It is a matter of another legal principle, namely, the liberty principle. I will come back to this principle in the 18th lesson. Comparatively, freedom of will is what matters in the context of human rights. The crucially important distinction between freedom of will and the freedom of action is, unfortunately, very seldomly reflected in human rights doctrine as well as in human rights case law. It is very necessary to keep this distinction in mind because the ­consequences are profound. Considering that freedom of will is the essence of personhood and that personhood is an absolute value, freedom of will is also an absolute value that is to be respected as such. Therefore, human rights are rights that protect freedom of will as an absolute. It is not possible to balance one human right against another or to balance human rights against any public interest. It is also not possible to reduce the protection scope of human rights in favor of any public or private interest that refers to equality, freedom of action, or any other task. It may sound strange to hear that human rights cannot be restricted or repealed. We have seen in the first lesson that many codified human rights contain clauses according to which it is legally permitted to reduce their applicability, e.g., for the sake of public security or public order, health, public morality, etc.. I do not say that these clauses are not legitimate. Nevertheless, I claim that they cannot be interpreted as a basis to reduce the scope of the human right in question. I will come back to this point later in the ninth lesson. For now, I want to go back to the question of the status that is protected by human rights. I have said that this status is that of personhood. So, we may conclude that there

131 7.2 · What Is Meant by Having a Right?

is only one human right. This is the human right to personhood. It means that every individual who is endowed with at least the potential to develop personhood is entitled to demand respect and, within certain limits, protection or support for the development and maintenance of personhood. Nevertheless, when we talk about human rights we do not talk about one single human right but rather an entire collection of different human rights. This multitude of human rights comes from the fact that personhood can be threatened in very different ways. It is a matter of history what kind of threat occurs in a particular time and under what particular circumstances. The different human rights correspond to different threats of personhood. The part of a human right that denotes the particular threat at which it is aimed at is called the protection scope of the human right in question. Human rights differ from each other according to the differences in their protection scopes. But all these protection scopes define only different kinds of threats against the same fundamental good, namely, the personhood of the human person. Now, we can fill the variables of our structure with particular content. Every human person [has a right toward] every other human person and toward the state on respect (or protection) of her personhood.

7.2

What Is Meant by Having a Right?

One part of the structure remains open: What is meant by having a right? – The American legal philosopher Wesley Newcomb Hohfeld analyzed the concept “right” by observing how this concept is used in legal articles and judicial decisions. He came to the result that the concept “right” embraces four different meanings. He distinguished privileges, claims, powers, and immunities. Most legal philosophers do not use the term privileges but prefer to speak of liberties. Hohfeld’s distinctions apply for legal rights as well as for moral rights. A liberty is simply the absence of any contrary duty: P has the liberty to drink wine before dinner if there is no binding rule that prohibits drinking wine before dinner. A claim is the logical correlative of the corresponding duty of another party. P has a claim against Q to do x, if Q has the duty toward P to do x.

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A power is the ability to bring about some change in the legal or moral situation of oneself and of others by performing some performative actions, for example, saying “Here, this is yours!” An immunity is the correlative of the absence of any legal or moral power of another party. So, you have immunity from losing your ownership by any unilateral act of another party, such as by grabbing your book and saying “Now this is mine!” A legal right consists of not only one of these positions but rather several of them. The owner of the human right to free speech has the liberty to express his opinion because he does not have a duty to keep silent. He also has the liberty to keep silent because he does not have a duty to speak. At the same time, he also has a claim against any other person to tolerate his speech or his silence because any third party has the duty to tolerate his speech or his silence. The right to free speech also embraces an immunity because no one else has the right to restrict the former’s right by performing a certain legal act. The right to free speech is not connected with a power because it does not embrace the power to change the legal position of oneself or of others. Altogether, we can say that having a right means having dominion over some core position in any confrontation with one or more other parties. Or, in other words: Having a right is the potency of the person in question to compel those who have an obligation toward that person to do something or to refrain from doing something. In the case of a legal right, the holder of the right can force the obligor by means of public power or physical force. In the case of a moral right, the holder of the right can force the obligor only by appealing to his conscience or by means of public accusations that damage the obligor’s public reputation. These means may be less effective. But effectiveness is not a required condition for having a moral right. Although it is possible to violate a right by acting against it, this does not entail that the right itself fades away because of its violation. In a society of masters and slaves, the right to freedom from slavery is continuously violated by the masters. Nevertheless, we can say that the slaves have a moral right to be liberated. For we are convinced that the masters should be forced by their conscience to liberate the slaves and we think that everybody should be outraged about slavery. It therefore makes sense to recognize not only legal, but also moral rights.

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7.3

Deriving Obligations from Values

Rights always relates to obligations. Where there is someone who has a right, there must also be someone else who has a corresponding obligation. Obligations and rights are normative sentences. Normative sentences say what we ought to do. Doing something because of an obligation is different from doing something because of a preference. From this point it becomes clear that it is at first glance hardly possible to derive human rights of human dignity. Human dignity is the name of a value judgment and value judgments say what a person prefers. What a person prefers is what she wants. Comparatively, rights are norms and norms say what a person ought to do. The former refers to will, while the latter refers to obligations. It is obvious that there is no direct possibility of deriving rights from values. This aspect is very often overseen in philosophical discussion. Many legal philosophers think that it is not problematic to derive human rights from the principle of human dignity. The reason for their mistake is the continuing influence of the traditional natural law approach. According to natural law, values are part of the objective reality and they are, so to say, by nature, connected with corresponding obligations and rights. But if we follow the subjective theory of value as I did in the second lesson of this lecture, then there is a categorical gap between values and norms and we need a deeper analysis of the concept of obligation and rights in order to find a bridge that could connect them with the value of human dignity. I do not know a way that directly leads from values to rights. Nevertheless, I think it is possible to show that there is a direct way from values to obligations. I will subsequently try to show you that obligations are in fact a certain kind of wish or preference. If my argument is convincing, then we have a bridge from values to obligations because both of them belong to the same family. In contrast to the first glance, values and obligations do not belong to different categories between which there is an insurmountable gap. Values and obligations belong, rather, to the same category, namely, to the category of values. I have to stress that I argue here on an ethical level and not on a juridical one. That should always be kept in mind. I start my argumentation with Immanuel Kant. Kant defined the concept of obligation as something that coerces our will. Kant distinguished between an internal and an external coercion. An obligation that is based on

Kant’s Concept of Obligation

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H.G. Frankfurt’s Conception of Different Orders of Volitions

an external coercion is an obligation toward other persons and is called a legal or juridical obligation. An obligation that is based on internal coercion is an obligation toward oneself and is called a moral obligation. According to Kant, for example, it is an external coercion if I have to pay a fine because I have exceeded the speed limit. Therefore, he would conclude that the obligation to comply with the permitted speed is based on an external coercion. A deeper consideration shows that external coercion can never establish an obligation. The fine or the threat of fines can never coerce my free will. The fine is only a good argument in favor of the idea that I may comply with the permitted speed. Nevertheless, good arguments do not coerce our will. In fact, a will that is based on nothing but good arguments is not a coerced will, but rather a free will. This is indeed the definition of the freedom of will – that it is based on nothing but good arguments. One could possibly speak about an external coercion of the will when it comes to torture. But torture does not coerce the will. It destroys it. Someone who, for example, commits a betrayal under torture cannot be held responsible. For his betrayal is not based on his own will, but on the will of another – someone under torture behaves like a machine and does not act like a person. These considerations show that coercion of the will can neither mean the destruction of the will nor the determination of the will by arguments. It is only meaningful to speak about a coercion of the will when we, in a certain sense, do not agree with our own will. This is the case when we wish to act in some way, while at the same time wishing to not act according the first wish. In such a paradox fight two contrary wills against each other. We can say, we do not wish what we wish. We do not want what we want. We feel a contradiction inside our own will. The American philosopher Harry Gordon Frankfurt has proposed to solve this paradox of will by distinguishing between two different levels or orders of will, namely the so-called volitions of the first order and the volitions of the second order. Volitions of the first order are our ordinary wishes and desires. They arise spontaneously and disappear when they are satisfied or where another new desire arises and displaces the former. These volitions of the first order follow each other. There is no conflict between them.

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I will demonstrate the nature of volitions of the first order and its relation to volitions of the second order in a simple example that has nothing to do with morality or with human rights. Let’s say that I’m hungry and I go to a bakery to buy a cheese sandwich. The wish to buy and eat a cheese sandwich is a volition of the first order. But at the counter, I see a ham sandwich and now I feel the desire for a ham sandwich. This is also a desire of the first order. What will happen? The desire for the cheese sandwich disappears. It is replaced by the desire for the ham sandwich. There is no conflict between the two wishes. It becomes more problematic if our volition of the first Shame as Coercion order meets a volition of the second order. Volitions of the second order refer to a wish that seeks for the wish of first order to not become realized. For example, I stand in the morning on the scales and find that I have gained weight. As I prefer to lose weight, I choose – while staying on the scales – to go without the sandwich today. This is a second order volition. It does not happen spontaneously, but due to my own consideration. It is the result of my own appropriate decision. It says nothing about my current needs, desires and passions, but something about how I want to lead my life. At noon I am hungry. I pass the bakery and see the delicious cheese sandwiches. I feel a volition of first order to buy and eat that sandwich. But there is a conflict between this volition and my volition of the second order from this morning. The volition of second order does not simply disappear. It is still there. Both volitions stand in conflict. The volition of second order cannot be displaced by the volition of first order because both of them are not on the same level. The wish of the first order has something to do with my hunger, the wish of the second order has something to do with the way I want to lead my life. It is not about pleasure versus pleasure, desire versus desire or hunger versus hunger, but rather about autonomy versus hunger and those are two things that cannot be exchanged. If I decide in this situation against the sandwich, I will feel an uncomfortable feeling, namely, a certain pain of deprivation, which also causes a certain sadness. Somehow I feel frustrated. Nevertheless, this feeling occurs alongside a certain feeling of proudness because I withstood the temptation. But what will happen if I decide in favor of the cheese rolls and against fasting? I am showing to myself that I am guided by my drives, instincts, and desires, and not by my own reasonable decision. This is, however, not compatible with my self-esteem. My self-­

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esteem is essentially based on my belief in my capacity of self-control and autonomy. Therefore, the self-inflicted loss of self-control leads to a loss of self-esteem or, in other words, to a self-devaluation. We regard this as a self-­ humiliation. We have a special word for this sense of self-­ humiliation and self-devaluation. We call it shame. The feeling of shame is much more painful than frustration because the former arises out of a deprivation of a second order volition, while frustration does not affect our self-­ worth as persons. The feeling of shame is very cruel and painful. This is why we regard the threat of shame as a power of coercion. In order to avoid shame, I feel coerced to choose fastening and to renounce the sandwich. In a conflict between strong volitions of the first order and strong volitions of the second order, we feel a kind of coercion that we can call obligation. Nevertheless, there is usually also another way to avoid shame. We can change our life plans, i.e., the way that we want to live. I can give up the plan to lose weight. Now I do not need to fast longer and feel shame when I eat a tempting cheese sandwich. The possibility of giving up second order volitions does not function, however, when it comes to absolute volitions of the second order. In such a situation, it is not possible to give up such volitions because it is in those very volitions that our absolute preference in favor of personhood are contained. We cannot give up this preference without suffering great damage to our own personhood. I have shown this in the last lesson. So, we have shown that the absolute value of personhood mutates to a human obligation if we are confronted with the temptation to ignore or to disregard the personhood of others. I think this is a convincing argumentation in order to show the possibility of deriving human obligations from the principle of human dignity.

7.4

Deriving Rights from Values

But, how can we move from human obligations to human rights? What I have shown so far is only that the principle of human dignity can function as a starting point from which we can derive obligations toward ourselves. Obligations toward oneself do not alter the moral position of others. So, we need another bridge that leads from the human obligations toward ourselves to the human rights

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of others toward us. I think this bridge can be constructed in the following way. As we have seen before, we are threatened with feelings of shame if we violate our human obligations toward ourselves. But in practice, it is very easy to avoid this result by replacing it with strategies of displacement as we have seen in the last lesson. So, there is a huge risk that we may fail in meeting our human obligations. We therefore need strong mechanisms of control. Conferring rights to those who are the beneficiaries of our human obligations toward ourselves is a sufficient mechanism of control. The conferral of human rights to our fellow humans has two important aspects: (1) we transform the obligations toward ourselves into obligations toward others; and (2) by conferring rights, we subject ourselves to the judgment of those who are concerned with acts that disregard their personhood. Conferring a right means to subject oneself to the criticism and sanctions of possible victims that may be betrayed by our possible violations of human obligations. We give them control over us and let ourselves be guided by them. Human rights are thus comparable to the mast to which Ulysses was chained to as he passed the island of the Sirens with his companions. He let himself be tied to the mast to be protected against the seduction of the songs of the Sirens, who otherwise would have tempted him onto their island so that he could crash into the cliffs. Human rights, like the mast of Ulysses, are a tool that can protect us against our selfish and ruthless desires in the face of numerous temptations. Human rights help us to not violate our mutual human obligations that we have imposed upon ourselves. It is up to us whether we confer human rights. But because human dignity is the highest and most important value for every person, every person has an interest in making sure that a violation of human rights does not occur. Therefore, we are forced by rationality to confer human rights. It is irrational to respect human dignity while at the same time refusing to confer human rights. For respecting human dignity means to confer human rights to those who are endowed with personhood. We can therefore assume that everyone who has a sense of human dignity has, at the same time, a sense for moral human rights. Accordingly, we can say that human rights can be derived from human dignity.

Conferral of Rights

Ulysses’ Mast

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??Do you still remember?

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7.1 What is the general structure of a right? 7.2 What is an obligation according to Immanuel Kant? 7.3 The derivation of human rights from the principle of human dignity is problematic because human dignity refers to a value while human rights refer to norms. Under Harry G. Frankfurt, however, it is possible to derive obligations from values. Explain the argumentation in few words. 7.4 Human rights are based on an attitude that can theoretically be understood as a permanent act of conferring: human beings are the holders of human rights because rational human beings confer to each other human rights. What can be considered as a reason behind this act of conferring?

For the answers, see 7 Chap. 21.  

Reading Recommendations Frankfurt, Harry Gordon: Freedom of the will and the concept of a person. In Journal of Philosophy LXVIII (1971), pp. 5 Hohfeld, Wesley Newcomb: Fundamental Legal Conceptions as Applied in Judicial Reasoning and other Legal Essays. New Haven. Yale University Press 1920. https://archive.org/details/fundamentallegal00hohfuoft Kant, Immanuel: The Metaphysics of Morals, 1786 (translated by Mary Gregor), Cambridge: CUP 2017, Part II, The Metaphysics of Morals - Introduction Tiedemann, Paul: The Relation between Human Dignity and Human Rights: What is meant by deriving human rights from human dignity? In Winfried Brugger/Stephan Kirste (ed.), Human Dignity as a Foundation of Law. ARSP_Beiheft 137 Stuttgart: Franz Steiner Verlag 2013 Waldron, Jeremy: Is Dignity the Foundation of Human Rights? In Rowan Cruft/S. Matthew Liao/Massimo Renzo (eds.), Philosophical Foundations of Human Rights. Oxford 2015

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The Multitude of Human Rights – 142

8.2

 he Ban on Inhuman/Degrading/Cruel T Treatment and Torture in International Law – 142

8.3

Philosophical Analysis – 144

8.4

Critique of the Case Law – 151 Reading Recommendations – 154

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_8

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Four Groups of Human Rights There are four groups of classic human rights: 1. Rights concerning the protection of physical and mental integrity 2. Rights concerning the protection of intellectual integrity 3. Rights concerning the protection of privacy 4. The right concerning the protection of life

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The codified rights to freedom from torture and inhuman, degrading, and cruel treatment (e.g., Article 5 UDHR, Article 3 ECHR, Article 1 and 16 CAT, etc.) are very diffuse. A deeper philosophical and empirical analysis leads to the following result: This right refers to humiliation by physical and mental cruelty. The attributes “inhuman” and “degrading” are synonyms. Both refer to humiliation by deprivation of personhood. This is, however, the characteristic of every human right. What the right in question makes special is the word “cruel” (although it is not mentioned in Article 3 ECHR). A cruel act is an intentional act by which severe physical or mental pain or suffering is inflicted. Cruelty through the infliction of severe physical pain is not only a violation of bodily integrity. Crucial is that it is a means of humiliation. By mistreating the body, the cruel act transports the message that the victim as a person is worthless and that her capacity of creating her own free will should be disregarded not just by her fellow humans but also by her. Cruel acts also lead to the loss of control over one’s own body and one’s own will, thus confirming the message. It is possible to inflict severe mental pain or suffering without touching the body. For example, this is the case in cultures that are deeply structured with systemic cruelty. The experience of permanently devaluing a person’s capacity to create her own free will, which is based on her own considerations and reflections, leads to the victim replacing her self-worth with a deep disregard and mistrust for herself. This weakens the willingness of self-determination and favors the willingness to subject oneself to the will of others (e.g., violent educa-

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tion of children; oppression and devaluation of women in Islamic societies). In very extreme cases, cruel treatment may lead to what psychologists call Dissociative Identity Disorder, which is a person’s complete alienation from her own physical identity (one’s own body is perceived as somehow strange). In less extreme cases, cruelty may degrade and, eventually, permanently damage the relationship between will and body that ultimately causes impairment and reduction of personhood. Not every intervention into the physical integrity of a person falls under the protection scope of this human right. So, for example, forced vaccination is an intervention into the physical integrity that is not a violation of human rights. For it does not damage the personhood of the respective person.

The Process of Degrading the Relationship Between Body and Will The process of degrading the relationship between body and will is epitomized by a permanent weakening of willpower by the experience of loss of control.

The Ban on Torture Torture is to intentionally inflict degrading/inhuman treatment through cruel means. The only difference to other types of cruel treatment is that torture is committed for particular purposes like getting information, forcing confessions, or effecting punishment, etc.

Case Law The interpretation of Article 3 of the ECHR by the European Commission of Human Rights (in the Greek Case of 1969) and by the European Court of Human Rights (Ireland v. UK of 1978) is – compared with the philosophical analysis – very confusing and hardly convincing. This demonstrates the usefulness of the philosophical analysis.

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8.1  The Multitude of Human Rights

8

Groups of Human Rights

In the last lesson, we analyzed the general structure of human rights. One important element of every human right is the protection scope. The scope of protection is what can be derived directly from the principle of human dignity. Every single protection scope refers to a certain threat to the personhood of human persons. The entirety of the scopes of protection illuminates certain aspects of personhood. So, we can say that the sum of all the scopes of protection of human rights forms a concretization of the concept of personhood. Deriving human rights from human dignity is a logical operation that consists of moving logically from a general term (personhood) to particular terms. Or, we can say that the scope of protection is an isolation of a certain particular aspect of the general term personhood. In this lesson and in the following five lessons, I will show you this close connection between human dignity and human rights by analyzing some rights according to how they protect personhood. In general, we can distinguish four groups of human rights: 1. Rights concerning the protection of physical and mental integrity 2. Rights concerning the protection of intellectual integrity 3. Rights concerning the protection of privacy 4. The right concerning the protection of life 8.2  The Ban on Inhuman/Degrading/

Cruel Treatment and Torture in International Law

In this lesson, I want to take a closer look at the rights concerning the protection of physical and mental integrity. The international human rights treaties codify these rights through very nebulous and unclear wording. This is the right to freedom from torture and inhuman and degrading treatment as it is codified in Articles 5 UDHR, Article 7 ICCPR, and Article 3 ECHR as well as in many other regional or international human rights codifications. I will discuss this human right using the example of Article 3 ECHR (see . Fig. 8.1).  

143 8.2 · The Ban on Inhuman/Degrading/Cruel Treatment and…

No one shall be subjected to torture and to inhuman or degrading treatment or punishment. ..      Fig. 8.1  Article 3 ECHR

[…] the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity. ..      Fig. 8.2  Article 1 CAT

A first look at the words “inhuman and degrading” may trigger certain representations and images in our head. The inquiry into these terms, however, is far from complete. Indeed, it will be difficult for us to define the concepts and to show what they describe. It seems much easier to understand what is meant by torture. This is particularly the case because we have a legal definition of torture, not in the ECHR, but in the framework of the human rights regulations. Article 1 of the UN Convention against Torture and other Cruel Inhuman or Degrading Treatment and Punishment (CAT), adopted and opened for signature, ratification, and accession by General Assembly in 10 December 1984, defines torture according to four elements (see . Fig. 8.2). These elements are: 55 severe pain or suffering, whether physical or mental; 55 intentionally inflicted, 55 for purposes (obtaining information, punishing, etc.), 55 where a public official is directly or indirectly responsible.  

Torture

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Each State Party shall undertake to prevent […] other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed [under the control] of a public official. ..      Fig. 8.3  Article 16 (1) CAT

Inhuman and Degrading Treatment

Although the Convention does not contain a specific definition for the meaning of “inhuman and degrading treatment”, it nevertheless provides a hint. According to Article 16 CAT (see . Fig. 8.3) there are: 55 other acts of cruel, inhuman or degrading treatment which do not amount to torture 55 when such acts are committed [under the control] of a public official.  

8

The defining characteristic of “public official” is negligible. It does not form part of the term “torture” or the term “inhuman and degrading treatment,” and instead only functions to limit the obligations under the UN Convention against Torture to certain cases of torture and inhuman and degrading treatment, namely where the state and its officials are responsible. Article 3 ECHR does not have this limitation. From the word “other” in Article 16 (1) CAT we note that torture is a kind of cruel, inhuman, or degrading treatment. “Cruel, inhuman, or degrading treatment” is, so to speak, the generic term while “torture” is one of its sub-terms. Torture is—as the expression “intentionally inflicted” shows—also a kind of treatment. Thus, the difference between “torture” and “cruel, inhuman, or degrading treatment” seems to be in the quality of purpose. A cruel, inhuman, or degrading treatment that takes place for particular purposes seems to be considered torture. Where purpose is missing, we have a case of cruel, inhuman, or degrading treatment, but not of torture. 8.3  Philosophical Analysis “Inhuman”

This preliminary interpretation, however, leaves unanswered why the CAT and the ECHR distinguish between “inhuman” and “degrading” treatment. Furthermore, the

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CAT provides a third distinction, namely “cruel,” which is also contained in the UDHR as well as in the ICCPR, but not in the ECHR. So, it is obviously necessary to analyze the words “inhuman” and “degrading” as well as “cruel” by through a philosophical analysis of language. First, what is meant by “inhuman”? My approach to the term “inhuman” consists of four steps. (1) The first statement we can make is that “inhuman” is obviously the negation of “human” like “invisible” is the negation of “visible.” Therefore, it seems reasonable to first ask what is meant by human treatment. (2) A first, but obviously false interpretation could consider the word “human” as an adjective of treatment that informs us about the fact that the treatment is committed by a human being. A human treatment in this meaning is a treatment committed by a human being like a divine treatment is a treatment committed by God. An inhuman treatment is then a treatment that is committed by a nonhuman living entity. Nevertheless, it is clear that the word “inhuman” cannot be understood that way. There is no entity in the world who can commit an inhuman treatment except for human beings. (3) A second interpretation recognizes the adjective “inhuman” not as a qualification of the word “treatment” in regard to the agent of the treatment, but in regard to the object of the treatment, namely in regard to the recipients of the treatment. An inhuman treatment in this meaning would thus transform a human being into a non-human being. How is it possible to transform a human being into a non-human being? A human being is, by definition, a living entity. Transforming a human being into something else can therefore mean to kill him. The dead body of a human being is not a human being anymore because it is not a living entity. It is a non-human entity. Nevertheless, the term “inhuman treatment” may not amount to killing of a human being. Someone who suffers from being subjected to inhuman treatment is yet live. Thus, the transformation of a human being into a non-human being must lead to other results. (4) A convincing interpretation seems to be that “human” or “inhuman” is meant in an emphatic sense. In this emphatic sense, “human” is not just merely a human being, but a person. A treatment is thus “inhuman” if it leads to the result that a human being is deprived of his personhood.

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“Degrading”

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We move to the concept of “degrading.” What is meant by “degrading” treatment? My approach to the term “degrading” also consists of four steps. (1) According to its literal meaning “degrading” means to remove someone from a relatively high grade or rank to a lower grade or rank. The concept leaves open the objective quality of the higher and lower rank. For example, if a politician has the rank of prime minister and after the elections he serves in the next cabinet as a minister, we could say that he has been degraded. If a free man is captured and made a slave, he too has been degraded. Nevertheless, it is obvious that there is a huge difference between the degrading treatment inflicted upon the politician and the degrading treatment inflicted upon the man. The term “degrading” is therefore very vague. (2) Still further, an appropriate understanding of what is meant by “degradation” can be achieved if we consider that there is another word that functions in some cases as a synonym for degradation. This is the word “humiliation.” Humiliation comes from the Latin word “humus” which means “soil.” A treatment is humiliating and, in this sense degrading, when it brings somebody down to the soil. What does this mean exactly? (3) We have to consider that it is a standard pattern in the intellectual history of mankind to distinguish human beings from other kinds of living entities through the attribute of being upright. Being upright means living at a distance from the soil. To bring a human being back down to the soil thus means to reduce that very distance. Accordingly, humiliation means to deprive someone of the “human” distance between himself and the soils, to transform him, so to speak, into a mere worm that crawls through the soil. (4) But this is only a metaphor. If having a distance from the soil is what makes the difference in human beings and if personhood is what makes human beings special in comparison to other living entities, then humiliation or degradation once again means to deprive human beings of their personhood. The language analysis of the notions “inhuman” and “degrading” shows that there is no difference between their respective meanings. The meaning of both is “to deprive someone of his/her personhood.” Nevertheless, “deprivation of personhood” is not an appropriate protection scope of a particular human right. For it is the general protection scope of all human rights and does

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not mark the difference between them. So, the question remains open, what special threat to personhood should be covered by the particular right to freedom from inhuman/degrading treatment. Here, it is useful to recall the attribute “cruel” that we find in Article 16 CAT as well as in Article 5 UDHR and Article 7 ICCPR. Cruelty should not be understood as an alternative to inhuman/degrading, but rather as a specific explanation of the kind of inhumanity/degradation that is addressed in this particular human right (although it is not mentioned in Article 3 ECHR). It thus makes sense to understand “cruelty” as it is expressed in Article 1 CAT, which defines cruelty as an intentional act by which severe physical or mental pain or suffering is inflicted. But now a new question arises – how can cruelty deprive someone of his/her personhood? It seems that cruelty, by definition, refers to the body and mentality (the feelings) of human beings, but not their capacity to create a free will based on their own considerations and reflections. In many societies, we tolerate cruelty to large extents, but very often people are not aware that such deprives others of their personhood. For example, until very recently, beating children was broadly understood throughout the world as a common means of education. Nobody thought that there was anything wrong with beating a child so long as the beating could be considered moderate. It is interesting to note what Pope Francis said to this subject to an audience on 4 February 2015  in Rome. He referred to a father who had said, “I sometimes have to smack my children a bit, but never in the face so as to not humiliate them.” The pope then praised the father for respecting his kids’ “dignity” by not beating them in the face or humiliating them. “He knows the sense of dignity!” said the Pope. “He has to punish them but does it justly and moves on.” Many commentators and large parts of the public in Germany and elsewhere were shocked and outraged. According to German civil law, beating a child is strictly forbidden. Section 1631 (2) BGB (Civil Code) reads:

»» Children

have a right to [a] non-violent upbringing. Physical punishment, mental injuries and other degrading actions are prohibited.

Nevertheless, this rule was only introduced in the year 2000. I suppose that the Pope would not gainsay this rule. He may argue, however, that a moderate beating that does not break bones, damages organs, bursts skin, or leaves

“Cruel”

Physical Violence

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visible bruises does not violate the body of the child and cannot be considered violence so long as the beating is not directed at the face. The example shows that our perception of cruelty or of degrading actions is different and depends on how we correlate assaults to the body with the deprivation of personhood. Interventions with the physical integrity of a person does not hurt the personhood of human individuals, even if they are very painful and cause permanent physical damage. Personhood, however, is hurt when the intervention is a means of humiliation. How can intervening with the physical integrity of a person lead to a deprivation of personhood? The graphic The Circle of Deprivation of Personhood explains this phenomena (see . Fig.  8.4). Hurting the body can damage the personhood when it sufficiently deprives the individual of his awareness of and control over his own body. Our being aware that we are the authors of our own life, capable of producing a free will on the basis of our own considerations and reflections, depends on the feedback of our body. We manifest our will by making a decision and transferring such to the appropriate physical activity. The body, in turn, reports back that it has received the command of the will and that it is acting in accordance with the will. The will learns, so to speak, from this  

8

autonomous decision

fragile decision

command

execution

loss of control turn 1

turn 2

turn 3

turn 4

turn 5

weakening of willpower

devaluation decision

information

execution fails

..      Fig. 8.4  The circle of deprivation of personhood. (© Sophie ­Reinisch)

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report, that it is effective. This awareness of effectiveness confirms the awareness of being the source of one’s own actions. It confirms the feeling of authenticity and encourages the individual to continue its attempts to lead a life of authenticity. Losing control over the body disconnects this mutual stream of information between will and body. From the viewpoint of one’s consciousness, the disconnected body is perceived as being far from oneself and being strange to oneself. The will loses trust in its own effectiveness and the individual consequently loses motivation and eventually the ability to create its own free will. This progression ends with the termination of personhood. In very extreme cases, this development results in what psychologists call the Dissociative Identity Disorder, which consists of a complete alienation of the self from its own physical identity. Nevertheless, this is only the most extreme possibility. But even in less extreme cases, physical violence can degrade and, eventually, permanently damage the relationship between will and body, thus ultimately causing an impairment to and reduction of personhood. Even in those situations where we cannot say that personhood has almost completely or completely disappeared, this injury is a serious disregard of personhood, requires protection through human rights. Physical interventions are not the only cause of a deprivation of personhood. Such may also be achieved through the infliction of mental pain and suffering. Interventions with the mental integrity of a person affect the feeling of control over the body by injecting the belief that the person has lost all control. Interventions with mental integrity lead a person to a deep disregard and mistrust of oneself as well as a willingness to subject oneself to the will of another. Examples of this kind of violence include mock executions, water boarding, or forced choice between one’s own children, one of whom is to be killed (actually or feignedly). This state of disregard for oneself can be a side-effect of the deprivation of physical control. The awareness that one’s own will is ineffective in terms of controlling the body leads, of course, to the devaluation of the free will and consequently to the disregard of personal authenticity. The same result can, however, also be reached without any intervention in the physical identity. Let me give you an example. In many Islamic countries, women are exposed to a severe grade of disregard through propaganda and, even, a non-violate oppression. In Saudi

Mental Violence

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Arabia, until recently, women were prohibited from driving a car or choosing a profession. For every decision concerning their life plans, they needed the permission of a man. This general atmosphere of disregard and contempt for women, which religion continues to justify, makes women believe that they have far less worth than men. This worthlessness relates to the capacity of women to lead their own life. It makes them believe that they cannot lead their lives on the basis of their own free will based on their own considerations and reflections. Women thus lose the feeling of appreciation and trust in their own judgment. They are therefore willing to subject themselves to the will of another. Impairing the consciousness of these women so that they come to believe that they are not someone but only something is a very extreme case of cruelty through mental interventions. Another extreme example is shown in the picture below (see . Fig. 8.5). It shows Jews in Vienna who were forced to clean the street with their hands, tooth brushes, and similar things when Hitler occupied Austria in 1938. This treatment is a good example of degradation without any direct physical injury. Forcing a person to do completely ineffective and senseless work leads to person believing that their life, their will, and any attempt to create a meaningful life is worthless. Nevertheless, forcing someone to clean a street in Vienna for hours may not have caused them to lose their consciousness of personhood through this single event. But, the permanent continuation of such type of measures increasingly destabilizes the self-esteem of a person until it eventually leads to the loss of personhood. This is why  

..      Fig. 8.5  Jews cleaning a street in Vienna with their hands (1938). (© Yad Vashem Photo Archive, Jerusalem. 1495/9)

151 8.4 · Critique of the Case Law

every single act of cruel treatment is to be considered a violation of the human right to physical and mental integrity. I hope to have shown that inhuman/degrading treatment through physical or mental interventions establishes a huge risk of loss of personhood. What about torture? Torture is an intentionally inflicted inhuman/degrading treatment done for particular purposes, like getting information, forcing confessions, or effecting punishment, etc. Nevertheless, not every kind of cruel treatment constitutes torture. After all, cruel treatment may not necessarily be intended for any particular purpose. It can also be an unintentional side-effect of something else.

Torture

8.4  Critique of the Case Law

So far, we have philosophically and empirically analyzed the notion of the ban of inhuman/degrading treatment. I think it is useful, however, to compare our results with the findings of the ECtHR as they interpret Article 3 ECHR. The first definition of torture as well as inhuman and degrading treatment was made in the context of the so-­ called “Greek Case” in 1969. It was not the Court itself who delivered the definition but the European Commission of Human Rights. According to the ECHR of the time, the proceedings started before the Commission and the Commission had to decide whether the case should be forwarded to the Court. The Commission had, so to say, a filter function. The institution was eventually abolished in 1998 (11th additional protocol). The “Greek case” was initiated by Denmark, Norway, Greek Case Sweden, and The Netherlands. It was a complaint against Greece which was governed at the time by a military junta that was committing many cruel crimes against Greek citizens. The Commission made a report of almost 700 pages. In this context, we find the first definition of torture and inhuman and degrading treatment. The definition starts with the concept of inhuman treatment and defines it as a treatment that deliberately causes severe mental or physical suffering (see . Fig. 8.6). The Commission added the element of a lack of justification. Torture was defined by the Commission as a special kind of inhuman treatment that contains two additional elements, namely, a particular purpose and an aggravation. Degrading treatment was defined as humiliation that drives the victim to act against his will or conscience.  

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The notion of inhuman treatment covers at least such treatment that deliberately causes severe suffering, mental or physical, which, in the particular situation is unjustifiable. The word ‘torture’ is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be degrading, if it grossly humiliates him before others or drives him to act against his will or conscience.

..      Fig. 8.6  Report of the EComHR on the “Greek Case“

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Ireland v. UK

These definitions differ in some important aspects to our own findings. We have seen that it does not make sense to distinguish between inhuman and degrading treatment. Nor does linguistic analysis permit the distinction between inhuman/degrading treatment, on the one hand, and torture in terms of the severity of the intervention, on the other hand. The idea that the infliction of severe mental or physical suffering is not inhuman treatment if it can be justified is obviously unconvincing because it denies the absoluteness of human rights. The Commission delivered no arguments for its view. But their considerations have a major impact on case law to this day. The Commission could not forward the case to the Court because the junta had previously declared its withdrawal from the Council of Europe and cancelled the ECHR. In 1978, the Court had for the first time the opportunity to define the three concepts in the decision Ireland v. UK. The Court essentially followed the Commission’s view but deleted the element of justification so that the three concepts are now purely descriptive concepts without any evaluative element. In accordance with the Commission, the Court defined inhuman treatment as an infliction of intense physical and mental suffering, whether or not combined with bodily injury. Torture was defined as an “aggravated and deliberate form of cruel, inhuman or degrading treatment.” In contrast to inhuman and degrading treatment, torture should attach “a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.” It is important to realize that the Court did not refer to the Commission’s opinion that specific purposes are crucial for

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the definition of torture. This makes clear that the motivation of the perpetrator is not crucial for the definition of human rights in general and torture in particular. They are about the protection of persons and the protection only depends on the impairment suffered by the aggrieved. The distinction between inhuman treatment and torture in terms of the element of aggravation is incorporated from the Commission’s point of view. But it is not convincing. It simply does not make sense to make this distinction. It is completely functionless. If the infliction of less severe pain is strictly forbidden, then the infliction of more severe pain is strictly forbidden a fortiori. There is no place for a more detailed distinction. Therefore, “torture” should be understood as a kind of explanation for the characteristic of degrading/inhuman treatment done with cruelty. This explanation is, however, important because it shows that the infliction of severe physical or mental suffering and pain is not just an attack on the body and the soul, but rather that it degrades a person to a non-­person. Degrading treatment was defined by the Court as humiliation. This is meaningless insofar as degradation and humiliation are synonyms. Although defining a concept with its synonyms is indeed true, it is nevertheless insufficient. Furthermore, the Court restricted degradation to special cases of humiliation, namely to those by which the victims are debased and their physical or moral resistance is broken. This also does not make sense because humiliation is, by definition, a kind of treatment that debases the victim and brakes his resistance. When speaking about physical or moral resistance, the Court thinks in terms of the resistance of one’s own will and the resistance of conscience. This distinction is also not clear. Will and conscience belong to different categories. Conscience delivers feelings and convictions which motivate the will and conscience is not an alternative to will. The most problematic aspect of the case law is the very sophisticated but nevertheless senseless distinction of inhuman and degrading treatment. In contrast the crucial criterion is cruelty. It is about the deprivation of personhood (humiliation) by cruelty. Unfortunately this criterion is not mentioned in the wording of Article 3 ECHR. This is the most relevant reason why Article 3 ECHR and consequently the corresponding case law is so vague and diffuse. Considering that the protection scope of the human right to physical and mental integrity refers to the protection of personhood, some critics conclude that the

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exclusion of non-persons from the so-defined protection scope leads to a complete lack of protection for those who are particularly dependent on the protection because they are, by nature, particularly weak. Here, critics think about human beings who are not endowed with personhood, like persons that are in a irreversible coma or suffering from severe dementia. Others think about animals. Nevertheless, from the fact that human rights in general and the right to physical and mental integrity in particular protect personhood does not follow that it is permissible to treat living entities who are not endowed with personhood, but are able to suffer, with cruelty. Human Rights do not legitimize cruelty against non-personal living entities. According to Immanuel Kant, it is a moral obligation to not commit any cruel treatment against any entity which is capable of suffering in order to avoid blunting our feelings. The practice of cruelty destroys our capacity for empathy. Cruelty against animals is a step forward to cruelty against persons, and the moral prohibition of cruelty against non-­persons is the first required step of our feelings toward persons and the protection of the physical and mental integrity of persons. ??Do you still remember? 8.1 All human rights serve the protection of one central good under different aspects. What is the central good? 8.2 Explain the circle of deprivation of personhood in cases of infringement of bodily integrity. 8.3 What is the crucial factual feature that distinguishes the ban of inhuman and degrading treatment and torture from other human rights? 8.4 According to the case law of the ECtHR, “inhuman treatment” and “torture” refer to the same kind of maltreatment. Describe this kind of maltreatment and explain the difference between “inhuman treatment” and “torture” under the case law.

For the answers, see 7 Chap. 21.  

Reading Recommendations Conroy, John: Unspeakable Acts, Ordinary People: The Dynamics of Torture. Berkeley 2001 Di Cesare, Donatella: Torture. Cambridge 2018

155 Reading Recommendations

Miller, Seumas: Torture. In Stanford Encyclopedia of Philosophy 2011. http://plato.­stanford.­edu/entries/torture/. Scarry, Elaine: The Body in Pain. The Making and Unmaking of the World. Oxford 1985. Schmid, Alex P./Crelinsten, Ronald D.: The politics of pain: torturers and their masters. Boulder 1994.

Case Law European Commission of Human Rights, Report on the “Greek Case”, Yearbook of the European Convention of Human Rights. The Greek Case 1969, The Hague: Martinus Nijhoff 1972, p. 186 ECtHR, judg. of 18/01/1978 – 5310/71 – “Ireland v UK,” HUDOC

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Freedom of Movement and the Rights Under Detention Contents 9.1

The Habeas Corpus Rights – 160

9.2

 umane Living Conditions While Under H Detention – 162

9.3

The Function of Article 10 ICCPR – 164

9.4

Total Institutions – 165

9.5

The Fight to Freedom of Movement – 170 Reading Recommendations – 171

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_9

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Right to Liberty – Right to Freedom of Movement The right to liberty (Article 5 ECHR) refers to the freedom from captivity. The notion “liberty” describes the protection scope rather inaccurately because the wording does not tell us anything about the content of liberty (liberty from what?). The context only tells us that it is about freedom from captivity and detention. Freedom from captivity is the negative formulation of the freedom of movement. Article 5 ECHR is part of the so-called habeas corpus rights.

Habeas Corpus Rights

9

The so-called habeas corpus rights were never considered human rights. They do not generally prohibit detention and captivity, but provide only a closed number of justifying grounds for lawful captivity (cf. Article 5 ECHR), certain procedural conditions (cf. Article 7 ECHR), and a right to a fair trial (Article 6 ECHR). They are procedural rights only and therefore constituent elements of the rule of law. They do not refer to detention as such.

The Freedom of Movement Detention as such is a deprivation of the freedom of movement. The freedom of movement in a broader sense embraces (1) the freedom to move one’s own body due to physical needs, (2) the freedom not to be under detention (“liberty”), and (3) the freedom to move from place to place within a country or across national borders. Forced restrictions on the opportunity to move one’s own body, exit through a certain point on the earth’s surface and the space overhead, or occupy another geographical position, can in extreme cases be a violation of the right to freedom from torture and inhuman treatment (being shackled to a chain, being locked in a cage, etc.). But not every restriction of the freedom to change the geographical position as such is a violation of human rights. Detention can generally be accomplished in accordance with the principle of human dignity. Therefore, restricting liberty in certain cases does not conflict with human rights (e.g., detention after a lawful conviction by a court as reaction on crimes). The conditions of life under detention must be free from bodily or mental vio-

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lence while also ensuring food, sanitation, accommodation, and privacy. Furthermore, it must be possible for the inmates to make relevant decisions about their own way of life in order to develop their personality and to maintain their personhood (see below: total institutions). The codified right to free movement (Article 4 of the fourth Additional Protocol of the ECHR) only refers to the right to travel from one place to another inside the country or to the freedom to leave the country. This right is not to be considered a human right. If it is possible to lead an authentic life under detention, it is also possible to lead an authentic life without having the freedom to travel from a particular place of residence to another. Only if humane conditions of life are not available at the present place of residence is the prevention of movement a violation of human rights (right to freedom from inhuman and degrading treatment).

Total Institutions Prisons, hospitals, or nursing homes are very often organized in a way of total institutions (Erving Goffman). Total institutions are places “of residence and work where a large number of like-situated individuals, cut off from wider society for an appreciable period of time, together lead an enclosed, formally administered round of life.” Total institutions reduce the opportunity to make meaningful decisions about one’s own life. Everything is organized and prepared. There are only little choices. This weakens and finally destroys the ability of the inmates to lead their lives on the basis of their own considerations and reflections. The inmates lose any sense of responsibility toward their lives such that they can no longer be considered authentic acting persons. This result depends on the duration of the time inmates are exposed to the total institution. A long term stay in total institutions establishes a violation of human rights. The hope of release in a far future is not a sufficient condition in order to avoid the deprivation of personhood in total institutions. Instead, it is necessary to have a sufficient scope in which the inmates can lead their lives responsibly and can make meaningful decisions about the way they want to live. Otherwise, they will lose the ability to lead their lives on the basis of their own considerations and reflections.

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9.1  The Habeas Corpus Rights

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Reasons for Detention

In this lesson, I want to deal with the rights relating to the deprivation of freedom of movement. The term freedom of movement is commonly used when it comes to the question of whether someone is free to travel from one town or region to another inside the borders of a state. Still wider framed is the question of the freedom of global movement, which refers to the freedom to immigrate. These questions are, however, not in the center of this lesson. We will only come to them at the end and only to make some passing remarks. In the center of this lesson stands the deprivation of freedom of movement in a much narrower sense – that is, freedom from captivity. When you search for these rights in human rights codifications, you will find that all these codifications deal with these rights under the label “right to liberty.” In contrast, I prefer the expression “freedom of movement” because the term liberty does not tell us to which kind of restriction the term refers. The claim for liberty critically leaves open the content of liberty (liberty from what?). I will subsequently show that the rights concerning captivity – despite their belonging to the classical content of every human rights codification  – cannot be considered human rights. There is, however, one serious risk for the development and maintenance of personhood in this context that deserves special attention. This is captivity in total institutions. There, we really meet a human right. But let me first give an overview of the rights relating to the deprivation of freedom of movement according to the ECHR. These rights are codified in Articles 5, 6, and 7 of the ECHR. At the center of these rights stands Article 5 (1) ECHR (see . Fig. 9.1). According to this Article, “everyone has  

Article 5 ECHR (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law.

..      Fig. 9.1  Article 5 (1) ECHR

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the right to liberty” and no one shall be deprived of their liberty. Nevertheless, this freedom stands under a long list of reservations that permit the deprivation of liberty through detention. According to this list, detention is permitted and cannot be considered a violation of the right to liberty in the following cases: 55 detention after conviction by a competent court; 55 arrest or detention for noncompliance with a lawful order of a court in order to secure the fulfilment of an obligation; 55 arrest or detention in order to bring a person before the competent legal authority on suspicion of having committed an offense; 55 detention of a minor for the purpose of educational supervision; 55 detention for the purpose of prevention of the spreading of infectious diseases and of persons of unsound mind, alcoholics, drug addicts, or vagrants; or 55 detention in order to prevent someone from unauthorized entry into a country or in order to extradite or deport someone from a country. The arrest or detention must be lawful. This means that the reason for the detention or arrest must be described by law. Article 7 ECHR adds insofar the rule of “no punishment without law” that prohibits to punish an act that was not punishable at the time when it was committed. The provisions of Article 5 (2) through (5) and Article 6 provide for certain rights while arrested or in detention. These include the right 55 to be informed promptly of the reasons of the arrest – Article 5 (2); 55 to be brought promptly before a judge – Article 5 (3); 55 to a trial in reasonable time – Article 5 (3); 55 to a fair trial – Article 6; 55 the right to judicial review of the arrest – Article 5 (4); and 55 the right to compensation in the case of unlawful detention – Article 5 (5). All these rights are traditionally called habeas corpus rights. “Habeas corpus” were the initial words of a so-­called habeas corpus writ by which an English court commanded the warden of a prison to bring a detainee to court in order to review the lawfulness of the imprisonment. (“[We command] that you should

Rights while Under Detention

Habeas Corpus

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have the [detainee’s] body [brought to court].”). Habeas corpus rights have never been considered human rights although they are part of many human rights codifications. They obviously have nothing to do with human rights because human rights protect people from a state of living where they are no longer able to maintain their personhood. The reasons for lawful detention and certain rights of the detainee, like those concerning access to a court, do not refer to whether there are particular dangers and risks to personhood while under detention. Habeas corpus rights similarly do not refer to the living conditions while under detention. They do not protect inmates against inhuman living conditions under which they are at risk of being deprived of their personhood. Habeas corpus rights are only procedural rights and therefore simply constituent elements of the rule of law and not part of human rights. Furthermore, why someone is being detained is not actually relevant within the framework of the habeas corpus rights. This can be demonstrated clearly by reference to the detention ground of conviction by a competent court. This clause does not demand a justification for the conviction, only that there has been a conviction. Nevertheless, Article 7 ECHR prohibits punishment without law. So, the conviction by a court must be based on a law that provides for the punishment of an offense that was well defined by law prior to the commission of the act of the accused. Still, habeas corpus rights say nothing about the legitimization of the definition of the offenses. This suggests that there is no conflict with these rights if the Penal Code of a certain state simply contains a rule that allows for the detention of anyone who criticizes the government. From the view of human rights, detaining someone based on the conviction of such an offense must be regarded as a violation of human rights, but not as a violation of the right to liberty, but that of the right to free speech. Even in this case, the detention as such does not come to the focus of human rights considerations. 9.2  Humane Living Conditions While Under

Detention

In the context of the foundation of human rights, we must ask whether detention as such is to be regarded as a matter of human rights. The question, therefore, is whether the

163 9.2 · Humane Living Conditions While Under Detention

deprivation of the freedom of movement is to be regarded as contrary to the principle of human dignity and therefore a required object of the protection scope of a human right. Here, I think it makes sense to distinguish different degrees of deprivation of freedom of movement and to consider all of them separately in order to determine whether they are in accordance with human rights. Consider a prisoner who is locked up in a small cage where he must hunch his body within a contained space that does not have enough room to take a normal body position. He is forced to remain in this position for many hours, days, or even weeks. This most extreme degree of deprivation of freedom of movement is obviously torture. It is a severe violation of human rights, but there is no need for an additional human right. Torture is already covered by the right concerning the ban of torture and inhuman treatment. There is no need to demand a separate human right to free movement in order to protect against a maltreatment of this kind. We can imagine other situations under detention that are also clear cases of torture or inhuman treatment. Think about overcrowded prison cells or very small cells. Similarly other human rights can be infringed by the design of the detention conditions. One important element of humane living conditions is having a meaningful opportunity for private communication. This is the communication with close friends and with one’s own husband, wife, or children. Detention is often connected with the interruption of family ties. This is a violation of the right to family life (Article 8 ECHR). The interruption of family ties by detaining a person violates not only the rights of the prisoner, but also the rights of the other family members who are not detained. Human treatment under detention, therefore, demands facilities and opportunities where the members of the family can meet each other under the conditions of privacy. But again, this is no reason for a special human right. There is already a human right that sufficiently addresses humane living conditions under detention as they relate to family ties and close private relationships. This is the right to privacy (see 7 Chap. 11). So, we come to a provisory conclusion: the set of all the other human rights are also applicable to living conditions under detention. It seems there is no special threat that is not already covered by the set of the ordinary human rights. But this is not the end of the story.  

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Imprisonment Privacy in Prison

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9.3  The Function of Article 10 ICCPR

Article 10 ICCPR may lead to the suspicion that the set of ordinary human rights are not enough to safeguard human dignity under conditions of imprisonment (see . Fig. 9.2). It seems to be a special human right for the living conditions under detention. Nevertheless, a closer look shows that Article 10 (1) ICCPR does not really add to the list of human rights. This can be shown by comparing the provisions that concern the ban of inhuman or degrading treatment in Article 3 ECHR and Article 7 ICCPR. Both articles address the way that persons may be treated. The difference is that the latter prohibits a certain treatment (inhuman treatment) while the former commands a certain treatment (humane treatment). We can express the difference by saying that the latter commands the omission of something, while the former commands the act of something. The idea behind Article 3 ECHR is not that the contracting parties of the Convention should be obliged to secure human conditions of life. The only thing they have to do is to avoid establishing inhuman conditions of life. Their responsibility is limited to not creating inhuman conditions such that they are not responsible for inhuman situations that have not been created by them. Comparatively, Article 10 ICCPR refers to the obligation of the contracting parties to ensure that living conditions be free of any inhumanity. Article 10 ICCPR seems to command an activity while Article 3 ECHR only commands an omission. A closer look, however, shows that this distinction does not really exist. The provision in Article 10 ICCPR relates to the situation of detention. This is, however, a situation that is established by the state because detention under inhuman conditions is a situation that is caused by the state. In other words, it is an inhuman treatment, exercised by the state. This shows that Article 10 ICCPR does not provide something different from what is already provided in Article 7 ICCPR, resp. Article 3 ECHR. Article  

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The Redundancy of Article 10 ICCPR

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

..      Fig. 9.2  Article 10 (1) ICCPR

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10 ICCPR stresses only the fact that the state has a much higher responsibility for living conditions under detention than for living conditions under freedom of movement. The reason for that is easy to understand. Under the conditions of freedom of movement, people can escape from an area where they are exposed to an inhuman situation. Under detention they cannot escape. Therefore, those who detain others are responsible for ensuring the humanity of living conditions for those under detention. In such circumstances, the state takes on the position of a guarantor. This is why the state as the operator of detention facilities has to make sure that inmates are not treated inhumanely by their fellow inmates or by the wardens. It has to guarantee that the inmates are provided with food, clothing, sanitation, health care, and sufficient opportunities for sports as well as intellectual and practical activities that are necessary to maintain physical and mental health. The comparison of Article 7 ICCPR (=Article 3 ECHR) and Article 10 ICCPR shows that the latter does not provide a special human right for living conditions under detention. Instead, it is a repetition of the ban of torture and inhuman and degrading treatment that relies on an alternative formulation. Accordingly, it is a redundant rule. So, we can conclude again that detention as such is not a matter of a special codified human right. Living conditions while under detention must be in accordance with all the human rights that we have previously discussed or that we are going to discuss in the further chapters. Nevertheless, there is a very specific threat that only occurs under conditions of imprisonment and similar situations. 9.4  Total Institutions

This specific threat has to do with the fact that detention facilities – prisons, nursing homes, hospitals, etc. – tend to be total institutions. Total institutions represent a special threat to the development and maintenance of personhood. The term “total institution” was introduced by the Canadian sociologist Erving Goffman (1922 – 1982) in his 1961 book entitled Asylums. Essays on the Social Situation of Mental Patients and Other Inmates. The institutions Goffman had in mind were not only prisons and nursing homes, but also the Army, war ships, and monasteries. Furthermore, an additional and seldom mentioned type

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Definition

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of institution that may also represent a total institution appears in the Wikipedia page about total institutions. The page refers to cruise ships and other tourist venues, but notes that these differ from traditional examples in that they do not last for long periods of time. Comparatively, extended stays that may come to include entire lifetimes is a fact in the cases of prisons and nursing homes. Goffman defined total institutions as places “of residence and work where a large number of like-situated individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed, formally administered round of life.” Among the characteristics of total institutions are the following: 1. The inmates are uniformed. They wear similar clothing and often a similar haircut. Part of the uniformation is also that they have little to no margin to shape their environment according to their own tastes and preferences. Their activities are also uniformed. Each inmate has to do the same activity as somebody else or, at least, as part of a large group of others. Inmates cannot choose the activity they want to do, and are forced to do activities under the commands of superiors. So, they cannot display themselves as singular individuals who are different from each other. The uniformation leads to the loss of interest and motivation to take care of oneself. 2. “All phases of the day’s activities are tightly scheduled, with one activity leading at prearranged time into the next. There is no margin to shape [one’s] own time.” 3. The “whole sequence of activities [is] imposed from above by a system of explicit formal rulings and a body of officials.” 4. The “various enforced activities are brought together into a single rational plan purportedly designed to fulfil[l] the official aims of the institution.” This definition is a definition of a type. Particular institutions can vary. So, the passengers of a cruise ship may not wear the same clothes and they might have a broader margin to choose activities as compared to the inmates of a prison. But one element is common for prisons as well as for cruise ships. This is the weakening and disappearance of the opportunity to lead one’s own life on the basis of one’s own considerations and reflections. Under all or at least all relevant aspects, inmates in a prison or tourists on a cruise ship lose responsibility for their own life. After

167 9.4 · Total Institutions

a certain duration of time, the inmates can no longer be considered authentically acting persons nor are they able to consider themselves as such. As I noted above, the conditions on a cruise ship are not determinative of total institutions because tourists are only aboard for a short period of time. They may even enjoy the freedom from the everyday burden of being responsible for their lives. They use their time aboard to recover from the everyday burden of leading their lives with authenticity in order to return to these lives with renewed strength. The cases of monasteries, however, are different. The members of a monastery are always free to leave the monastic community. So, it is difficult to say that a monastery violates human rights. Monastic life may lead to a deprivation of personhood, but this is not a forced deprivation. Nevertheless, this phenomenon leads to the question of whether there is a moral duty toward oneself to maintain one’s own personhood or whether persons are morally free to renounce it. This is, however, not a question of human rights. With the exception of the right to life, human rights protect against the deprivation of personhood by offenders who are not identical to their victims. In contrast, long lasting detention in a prison leads to a forced deprivation of skills of personhood. It is interesting to note that the organization of total institutions is not immediately directed to the destruction of personhood, like is the case with torture. Rather, it is an indirect way of violation. The deprivation of any relevant margin to shape one’s own life leads to the devaluation of the personality that one has already developed. Personality is based on the entirety of one’s actions that he has committed during the course of his life. The maintenance of a personality requires the continuation of creating actions on the basis of one’s own free will. If all actions that can be committed by the person concerned are rendered useless or irrelevant, then the person loses the interest and the motivation to create new life plans (see . Fig. 9.3). Initially, she is still able to lead her life on the basis of her own will (stable personality). When she feels that her personality is threaten because she is no longer able to realize her own will by committing relevant actions (deprivation of self-­determination) she will try to oppose the rules and conditions of the total institution (state of resistance). Considering that this resistance cannot be maintained, the respective person loses the interest  

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The Process of Losing Personhood

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Stable personality

Entry into institution

Loss of interest

Failure of resistance

Atrophy of skills

Deprivation of selfdetermination Resistance Deprivation of personhood

..      Fig. 9.3  Process of institutionalization. (© Paul Tiedemann)

Hospitalization Prisonization

9 Case Law

and motivation to rescue it. As her ability to create free will is exercised less and less, the ability will eventually be lost to her altogether. Thus, the long term inmates of a prison or hospital will subject themselves more and more to the will of the wardens and the rules of the system. The first step is the devaluation of personality, the second step is the loss of personality, and the third step is the loss of the ability to create a personality. These are the tiers of the deprivation of personhood. This process is called hospitalization when it is related to inmates of hospitals, nursing homes, or orphanages. Where this process concerns long term prison inmates, we can talk about prisonization. The term institutionalization encompasses both. The German Federal Constitutional Court was the first to recognize the consequences that total institution has on the personhood of inmates. In a judgment of 1977, the Court ruled that life sentences violate human dignity and are therefore unconstitutional, unless there is a real chance to be released after a certain period of time. According to this judgment, the German Penal Execution Act provides that inmates who have been sentenced to life shall be released after a period of 15 years unless there are concrete facts for believing that they do not regret their crime or if they were sentenced for an extremely severe crime. Beginning with the case of Kakaris v. Cyprus (2008), the ECtHR decided that imposing a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the ECHR, but that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. In determining whether a life sentence in a given case can be regarded as irreducible, the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. Where detention is subject to parole review

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after the prisoner has served the minimum term of the life sentence, it cannot be said that the life prisoner in question has been deprived of any hope of release. Both courts obviously hold the opinion that an inmate is sufficiently motivated to maintain his ability to lead his life on the basis of his own considerations and reflections if there is a real prospect of release. I take the opinion that the prospect of being released one day in the far future is insufficient for avoiding the consequences of a total institution. In the case of life imprisonment, it is necessary to organize the prison in a way that avoids the elements of a total institution. In order to avoid the elements of a total institution, we have to think about alternative forms of prisons and detention facilities. An interesting example of such an alternative is the prison village of San Pedro in Bolivia. This village has workshops, restaurants and all the facilities which are customary in Bolivian villages. Nevertheless, contrary to ordinary villages, it is surrounded by a fence that is guarded. The inmates are not allowed to leave the village. The only people living inside are prisoners and their wives and children. They organize their own lives. The state does not provide for their livelihood or ­otherwise intervene in what happened within the village. The prison village San Petro existed for 100  years. In 2013, after 100 years of existence, the Bolivian government planned to close it. The reason was that gangs of criminals had taken over power and mistreated the inhabitants of the village. It became more and more a breeding place for new crimes, committed against the inmates of the prison. Nevertheless, it still exists. If we leave these negative developments aside, then the fact remains that the villagers were able to lead a normal life. They were only prevented from leaving the site. This restriction as such does not involve a situation where it is no longer possible to develop and maintain personhood. Therefore, it is not difficult to see why the mere prevention of leaving a certain part of the surface of earth should be considered as a matter of human rights. Captivity as such is not an issue of human rights; only the conditions within the detention center can be considered a matter of human rights. Under the conditions of the Bolivian prison village, the inmates can organize their own life. They can develop

prison village

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life plans and they realize them. The deficiency is only that the state does not take responsibility for the protection of the inmates against ill-treatment by their fellow inmates. This leads to living conditions that must be regarded as inhuman. Failing to ensure the security of the inmates of the village is therefore to be considered an inhuman treatment perpetrated by the State of Bolivia. Nevertheless, the Bolivian prison village is a good example of how a fenced institution could be organized to fulfil the function of separating criminals from the rest of the society while avoiding at the same time the elements of a total institution. The right to freedom from total institutions is not expressed adequately in current human rights codifications. Specifically, Article 10 ICCPR does not adequately describes the protection scope of this right. It cites only the general principle behind all human rights, namely the principle of human dignity. Nevertheless, every single human right is supposed to concretize this general principle by defining specific scopes of protection. This is unfortunately not what Article 10 ICCPR does. So, we have to recognize that it is necessary to derive a new unwritten human right from the principle of human dignity, namely the right to freedom from total institutions. 9.5  The Fight to Freedom of Movement

As I promised at the beginning, I would like to add a few words on the status of the right to free movement. This right is found in Article 13 UDHR and in the Article 12 ICCPR as well as in Article 4 of the fourth Additional Protocol of the ECHR. It entitles anyone who is lawfully residing in the territory of a state to move freely and to freely choose their place of residence there. As I have mentioned above, the freedom to travel from one place to another inside a state is not necessary in order to maintain one’s own personhood. Even the mentioned codifications recognize that this right obviously is not a human right. For they make the exercise of the right dependent not only on the fact that someone is a human or a person, but also that he is lawfully residing in the territory of the state in which he wishes to move freely. This last condition can only be fulfilled with the consent of the respective state. Rights that depend on the consent of the state cannot be considered human rights.

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??Do you still remember? 9.1 Do the habeas corpus rights have to be considered human rights—why/why not? 9.2 There is a specific threat of personhood in prisons or in other closed facilities (hospitals, nursing homes, etc.) that is not adequately covered by one of the codified human rights. What do you know about this specific threat? 9.3 What is the function and relevance of Article 10 ICCPR? 9.4 Does the codified right to the freedom of movement have to be considered a human right?

For the answers, see 7 Chap. 21.  

Reading Recommendations Foucault, Michel: Discipline and Punish. The Birth of the Prison. 1975 Goffman, Erving: Asylums. Essays on the Social Situation of Mental Patients and other Inmates. 1961 Stohmayr, Simone: Menschenwürde und Strafvollzug 1998 Williams, Stephen M.: Environment and Mental Health. 1994

Case Law BVerfG, judg. of 21/06/1977 – 1 BvL 14/76 –, BVerfGE 45, 187 ECtHR, judg. of 12/02/2008 – 21,906/04 –, “Kakaris v Cyprus” (§ 97, 98)

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Human Rights Concerning the Protection of Intellectual Integrity Contents 10.1

The Freedom of Information – 177

10.2

Freedom of Expression – 179

10.3

Freedom from Censorship – 181

10.4

 he Right to Free Assembly and the Right T to Free Association – 182

10.5

Restriction Clauses – 184 Reading Recommendations – 195

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_10

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Communication Rights The phrase communication rights embraces: 1. the right to free information; 2. the right to freedom of thoughts; 3. the right to free expression that includes the freedom to express assertions (impart information), questions, opinions, and convictions, the freedom to produce or to perform pieces of art and to do science and philosophy; 4. the right to freedom of assembly; 5. the right to freedom of association; and 6. the right to freedom from censorship of generally accessible media, like the Internet.

Function of the Communication Rights

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The core function of the communication rights is the defense of the freedom of will against manipulation. The particular communication rights refer to particular strategies of manipulation. A manipulated will is not based on one’s own considerations and reflections but on the considerations and reflections of the manipulator. Manipulation makes the will of a person into an alienated will.

Freedom of Information The freedom of information protects the free will against manipulation by suppressing relevant information and/or by producing false information, and by establishing so a wrong world view.

Freedom of Thoughts The freedom of thoughts protects the free will against manipulation by indoctrination. Indoctrination is the dissemination of a unilaterally distorted doctrine, combined with the suppression of any criticism. The freedom of thoughts embraces the freedom to ask questions.

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Freedom of Expression Freedom of expression protects the free process of will making by ensuring the opportunity to review what someone holds as true or convincing. By expressing thoughts, we expose our ideas to criticism of others. In the light of the criticism of others, we can modify or reject them, so that our ultimate manifestation of will is based on rational considerations and reflections and not on illusions and errors. The suppression of the expression of thoughts is a manipulative strategy that seeks to hinder someone in their creation of a free will that is based on sufficiently tested rational considerations and reflections. We can identify ourselves as the author of our will making process only if this process is free from manipulation.

Freedom of Censorship The censorship ban prevents the manipulation of the media and protects the public against indoctrination by the media. As long as the media have a privileged position to speak and be heard, and as long as censorship does not oppress certain ideas but refers only to the cut off of the privileged position, the protection of the media cannot be considered a matter of human rights but rather a matter of democracy.

The Freedoms of Assembly and Association Assemblies and associations are media which serve the exchange of ideas. They are like the mass media an instrument by which manipulation, indoctrination, and error can effectively be avoided and a forum for criticism can be provided. Associations and assemblies can furthermore serve the purpose of cooperation and the establishing of synergy effects, power, and influence. Such cooperative activities go beyond the mere exchange of ideas. In this respect associations and assemblies are not protected by a moral human right. For the freedom to organize organizations of cooperation in terms of activities beyond the exchange of ideas cannot be derived from the principle of human dignity.

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Reservations in the Codified Communication Rights The philosophical analysis shows that the restriction clauses in codified communication rights (e.g., Articles 9 and 10 ECHR) are partly much too extensive. They can only be accepted if we take into account that the protection scope of the codified right is wider than the protection scope of the moral human right that can be derived from human dignity. Thus, it makes sense to distinguish the core and the yard of a codified right. The core of the right embraces what is required to protect the moral human right. The yard embraces what falls under the notions of the codified rights, but lies beyond the scope of the moral core. Only an appropriate philosophical analysis of the protection scope of the rights makes us able to interpret the restriction clauses in an appropriate way that respects the fact that moral human rights are absolute rights which, by definition, cannot be restricted.

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Limits of the Protection Scope of the Communication Rights Not all content of an idea falls under the protection scope of the communication rights. There are thoughts which cannot be expressed when the speaker at the same time seeks respect for human rights. These are all thoughts which contently deny the validity of the corresponding human right. A speaker who expresses such thoughts is entangled in a performative contradiction. A performative contradiction renders meaningless both the expressed idea and the request for protection by human rights. The idea cannot be taken seriously and therefore cannot be under the protection scope of a human right (e.g., hate speech).

Performative Contradiction A performative contradiction is a contradiction between a proposition and the speech act by which the proposition is expressed. For example, P requires protection by human rights (= speech act) for his statement that human rights do not exist (= proposition). Someone who demands the protection of human rights for his hate speech, express in his speech act the recogni-

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tion of human rights, while at the same time denying the recognition of human rights in what he says. From this analysis follows that hate speech does not fall under the protection scope of the communication rights. From a philosophical point of view, it is not necessary to restrict the protection scope of the communication rights by special restriction clauses in order to oppress hate speech and the like.

10.1  The Freedom of Information

In the last two lessons, we saw that the infliction of serious physical or mental harm will first weaken and later destroy the ability of a person to lead their own life on the basis of their own free will. The infliction of serious physical or mental harm of persons is therefore a serious threat to personhood, but not to mere animal cruelty. In this lesson, we will deal with another threat to personhood, namely, the threat to intellectual integrity. First, I want to talk about the right to freedom of information. The ability to create one’s own free will based on one’s own considerations and reflections requires a certain amount of information about the conditions under which one is living. The person must know the conditions of life which she cannot change in order to appropriately accommodate herself to them so as to avoid getting a “bloody nose.” Furthermore, the person must know which conditions of life she can change in order to be able to deliver a reasonable judgement of whether these conditions should be changed. What happens when the relevant information about the conditions of life is incorrect? The person will avoid changing conditions which, from her point of view, are worth being changed, and she will invest a large effort in order to change conditions which are unchangeable. Although it is possible for a person to create her free will on the basis of incorrect information, it is not possible for her to properly lead her life on the basis of such a flawed free will. In terms of human rights, incorrect information as such is not problematic. Law, morals, as well as any other means cannot establish living conditions in which the risk of error is completely eliminated. We must live with errors, i.e. with false information.

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Manipulation

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But what should we make of the situation where someone makes decisions based on false information provided by another person who deliberately brought forth such information to manipulate the will of others? Manipulation does not encompass every instance of activity that influences the process of will making of another person. The strategy of influence is manipulative only if it makes the person unable to verify critical truths relating to the information because he has been systematically cut off from all true information that would be suitable for recognizing the truth. What is the relevance of manipulation in the context of human rights? The result of manipulation is that the target person will eventually make decisions for which she is not the actual author. Instead, the authors of the decision are those who manipulated her. The manipulated person may even believe herself to be the author of her life. She too may not suffer from the manipulation because she has no awareness of it. Nevertheless, she is not leading her life on the basis of her own consideration and reflections, but rather on the considerations and reflections of the manipulators. This shows that manipulation is a serious attack to one’s own authenticity through the violation of intellectual integrity. The freedom of information is the freedom from manipulation through the suppression and distortion of information. The right to freedom of information is subject of both Articles 9 and 10 ECHR (see . Fig.  10.1). Article 10 mentions the freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers. This provision guarantees the active (impart) as well as the passive (receive) freedoms of information. The norm only protects against interfer 

Article 9 ECHR Everyone has the right to freedom of thought, conscience and religion; … Article 10 ECHR Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless frontiers. … ..      Fig. 10.1  Freedom of information and expression

179 10.2 · 10.2  Freedom of Expression

ences by public authorities and does not take into account that the freedom of information can also be impaired by private agents. In such formulations, it becomes clear that the traditional view only considered the state as being able to violate human rights and that human rights therefore restrict only the power of the state. So, Article 10 ECHR codifies less than what is necessary in order to completely cover the protection scope of the moral human right to information. The freedom of thoughts (Article 9) refers to the ban of any kind of indoctrination by the state as well as by other institutions and individuals who have the power to do so. Indoctrination is a kind of education that consists of the manipulation of information in order to avoid any critical assessment. Article 10 ECHR further includes the right to freedom of expression. This is a little bit confusing insofar as freedom of expression includes the freedom to impart information. Indeed, this is a duplication in the codification. But expression refers not only to the expression of pieces of information, but beyond that. 10.2  Freedom of Expression

Now I come to freedom of expression. Freedom of expression refers not only to the expression of information, but to a wider range of concepts. We can distinguish between the expression of assertions and questions, on the one hand, and the expression of opinions and convictions, on the other hand. Let us first deal with the expression of assertions. The protection of intellectual integrity requires the freedom to express assertions. If it is about the expression of assertions that orientate others then we refer to the protection scope of the freedom of information. But the freedom of expression is also important in order to orientate oneself – that is, the sender of the allegation. It is important to understand that the freedom to express assertions does not refer only to the expression of true assertions. It embraces also the expression of assertions which are false. It might be questionable why expressing false assertions should be protected to for the expression of assertions is a piece of information for others and information is only valuable if it is true. Nevertheless, false assertions are also valuable for the sake of orientation of the sender. This is why the expression of assertions

Assertions

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Opinions

Convictions

is an instrument of review of what someone holds as true. It is necessary to express what we hold as true so that it becomes possible for others to criticize our allegations. In light of that criticism, we can then correct false assertions and so free ourselves from error. From this follows that the freedom of expression embraces the expression of false allegations which are based on an error, but not false allegation which are based on a lie. Telling lies is not protected by human rights because lies are neither useful to inform others nor useful to orientate oneself. Lies are not necessary but counterproductive to the purpose of leading your life on the basis of your own considerations and reflections. In order to receive a true view of the world so that we become able to lead our life on the basis of our own considerations and reflections, it is also necessary to ask questions. People have been persecuted under many oppressive regimes simply because they ask certain questions, for example questions which refer critically to the content of the public indoctrination. So, it is obvious that there is a need for the protection of the freedom to ask questions. In order to lead our life on the basis of our own considerations and reflections, we need not only the possibility to review the allegations which we hold as true, but also the possibility to review our opinions and convictions which we hold as adequate and appropriate. Only when we can express the result of our considerations and reflections in front of others – and in the light of the criticism of others – is it possible to make an assessment of them in terms of adequateness or appropriateness. The expression of opinions and convictions is therefore an essential tool for creating an authentic free will. The distinction between opinion and conviction should make clear that we need this essential tool to assess more than just our own considerations and reflections of which we are still not entirely convinced (opinions). This tool is also important with regard to those results of our considerations and reflections of which we are entirely convinced. In the first case, we may express our ideas deliberately in order to test them in the light of the public criticism. In the second case, we express them in order to inform others about our own life plans or in order to influence their own process of will making. In the case of a conviction, we are sure that nothing can be criticized. But nevertheless, we know it can. The expression of convictions exposes them to the criticism of others, regardless of whether we intend

181 10.3 · Freedom from Censorship

as much. In any case, this criticism can keep us from building our lives on false ideas. 10.3  Freedom from Censorship

The codified rights to freedom of information as well as to the freedom of expression also cover the ban on censorship. Traditionally, this ban corresponded to the freedom of the press and later to the freedom of radio and television or, in general, to the freedom of so-called mass media. Mass media provides access to a large indefinite and anonymous group of receivers and therefore has a very high grade of effective influence over public opinion. Considering that access to traditional newspapers or TV channels is strongly restricted, the opportunity to spread their messages is restricted to a relatively small group of people. These people have a privileged position which provides them with a certain kind of power. Someone in the position of a journalist who has the opportunity to write articles for the New York Times or the Süddeutsche Zeitung obviously has a higher chance to be heard than ordinary people who can express their opinions only in front of a small group of people who listen to them. Only recently, a new form of mass media appeared on the stage of public communication, namely the Internet. Access to the Internet is hardly restricted and therefore does not provide a particular position of power. Everybody is more or less capable of spreading his or her messages through the Internet and the chance to be heard is more or less equal for everybody. In terms of human rights, we have to distinguish between communication platforms which provide a privileged position concerning the chance to be heard by a certain audience and communication platforms which do not provide such a privileged position. The moral human right to freedom of expression does not protect such privileged positions because they do not protect privileged positions of power over other people. The freedom of the press, including the ban of censorship concerning mass media in a privileged position, can therefore not be considered a human right. It is rather a kind of civic right that is not based on the principle of human dignity but rather on the principle of democracy. The same distinction is relevant in the case of a school teacher, for example. His position to express his opinions in front of the school class is not protected by a human

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right because this position is a privileged one. The students are coerced to attend school and cannot avoid listening to the teacher. So, they do not have the opportunity of avoiding a confrontation with the teacher’s political or religious opinions. The right to freedom of expression, however, does not only embrace the freedom to speak and to listen, but also the freedom to be silent or the right not to be confronted with an opinion, which someone does not want to hear. Freedom is only freedom if it embraces the opportunity to act as well as the opportunity to refrain from acting. Furthermore, the expression of a political opinion in school classes is unfair and disturbs the free exchange of ideas when the teacher misuses his position and privilege to get attention. There is no equality in the opportunity to speak and be heard. This shows that the negative communication rights of the students require prohibiting the expression of personal political opinions while teaching in a school. Therefore, the school administration may restrict the right of the teacher to express her opinions in front of the school class.1 But if the teacher distributes political or religious flyers outside the school on the streets, her chance to speak and be heard is exactly the same as anybody else. Therefore her freedom to spread her message on the streets is protected by human rights. This shows that the human right to free expression is very closely connected with a certain standard of equality. Equality here refers to the absence of privileges and to equal chances to be heard.

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10.4  The Right to Free Assembly

and the Right to Free Association

Communication Platforms

There are still other human rights that are dedicated to the protection of intellectual integrity. These are, in particular, the right to free assembly and the right to free association (see . Fig. 10.2). Associations and assemblies are actually media in a wider sense. Therefore, they are to be protected in order to ensure an effective exchange of ideas and to  

1

Certain political or moral opinions can of course be made an issue of school education. In this case, the teacher is empowered to fight for certain ideas in his classes. But she does not act here in her capacity as a holder of human rights, but as an instrument of the official education policy.

183 10.4 · The Right to Free Assembly and the Right to Free Association

Article 11 ECHR (1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. ..      Fig. 10.2  Right to assembly and association

protect individuals against attempts of manipulation and indoctrination. Assemblies as well as associations bring people together so that they can communicate with each other. Assemblies gather people only for a short piece of time, associations stabilize the gathering through time and space and give them a more stable structure. Assemblies and, in particular, associations are not only, or necessarily, purely communication platforms. They can also be used to work together in order to shape the world, to create synergy effects, and to effectively change the world. When associations or assemblies do so, they develop activities that go beyond the mere exchange of ideas. Therefore, they are no longer protected by human rights which seek to protect the intellectual integrity. They make use of freedom of action and not the freedom to produce a free will on the basis of one’s own considerations and reflections. The freedom of action has nothing to do with intellectual integrity and is therefore not part of the protection scope of the communication rights. Article 11 ECHR and all the other similar human rights codifications protect assemblies and associations not only in their capacity as communication platforms, but also as means of cooperation. The norm refers expressively to the right to form and to join trade unions. Trade unions are by definition not just communication platforms. Rather, they are organizations in which a certain kind of social power emerges in order to push through appropriate working conditions and an adequate income for its members. The positive law confers certain privileges and guarantees to the existence to the trade unions. This mirrors the relevance of the working class in an industrial society and is thus not a result of philosophical reflection about human rights. As far as the rights relate to freedom of cooperation, i.e., to the freedom of action, they cannot be considered a transformation of a moral human right into a juridical human right. So, we have to state that the codifications

Core and Yard

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use the concepts of assembly and association with a double meaning. The first meaning relates to the freedom of will (human dignity) while the second meaning relates to the freedom of action. Only the first meaning is a codification of a moral human right. Only this meaning refers to the principle of human dignity. This is the first occasion for us to distinguish between what we can call the core of a codified human right to free assembly and free association (protection of communication) and the yard of these rights which only refers to the freedom of action and is therefore not to be considered a human right. I will not discuss these particular rights in further detail, but I want to move to another important characteristic of the structure of the codified human rights which plays a particular role in the context of the communication rights. 10.5  Restriction Clauses Limiting Clauses

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This important characteristic appears in Article 10 (2) ECHR (see . Fig.  10.3). According to this provision, it seems that the ECHR does not recognize the communication rights as absolute rights. Considering that human rights are derived from the principle of human dignity and that human dignity is an absolute value, it follows that human rights must also be absolute rights. The provision of Article 10 (2) ECHR seems to not be in accordance with this conclusion. It authorizes the state to establish formalities, conditions, restrictions, or penalties that seem to limit the scope of protection of the rights concerned. We could conclude that Article 10 ECHR is not an appro 

Article 10 ECHR (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” ..      Fig. 10.3  Restriction clauses

185 10.5 · Restriction Clauses

priate codification of the moral human right of freedom of expression and information. Nevertheless, we should carry out a closer analysis. The clause distinguishes between formalities, conditions, restrictions, and penalties. Formalities and conditions may not necessarily function as means of limitation, but they can function as means of limitation. Let us imagine a law that requires an official permission if a political party wants to attach election posters in public spaces. As long as the permission only depends on the location where they can be fixed, so as avoid covering road signs or traffic lights or otherwise hampering road traffic, there is no conflict between such a formality and the communication rights. If on the other hand, the permission depends on the content of the election posters, then we are confronted with a severe conflict between the two. This shows that not every conceivable formality can be accepted. Only formalities which do not lead to a restriction of the protection scope may be taken into account. There are also conceivable conditions that do not restrict the right but rather make sure that it is exercised in a way that does not violate the rights of others. So, it is a condition in this meaning to prohibit the expression of a teacher’s political opinion while she is teaching students in the school in order to protect the negative freedom of thoughts of the students. As far as the provision mentions penalties, this can also be interpreted in a manner that is consistent with the absolute status of human rights. This is the case where the penalties relate to the violation of provisions concerning admissible formalities or conditions. If provisions about these formalities and conditions are consistent with the absolute status of human rights then so too are the sanctions that correspond to violations of these provisions. Now we come to the most problematic part of Article 10 (2) ECHR. It authorizes the state to establish restrictions of the rights mentioned in first paragraph. The very first condition of restrictions is the prescription by law. This refers to a statutory reservation. The function of statutory reservations in the first line ensures generalization. A constraint that applies to some, should be applied to all. This not only prevents arbitrariness, but even prevents or at least hinders any willingness to restrict a right. For to restrict the human rights of a few is always connected with the restriction of these rights by the majority. The requirement of the prescription by law does not function as an

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National Security, etc.

instrument of restriction but rather as an instrument that provides a handicap that makes the restriction of the right more difficult. It is therefore to be considered a means of protecting the right and not a means of restricting the right. The problem of restriction appears if we analyze the particular components of the list of grounds for restriction. I start with the ground for restriction of preventing the disclosure of information received in confidence. Information is confidential when the owner of the information wants to exclude some others from knowledge. This exclusion from information can hinder persons from receiving pieces of information that would help produce their own free will. Exclusion of information can therefore be a means of manipulation. This makes confidentiality ­problematic. Nevertheless, we have to consider that the maintenance of personhood and the leading of one’s own life based on one’s own considerations and reflections does not require a complete knowledge of everything that could be relevant to make decisions. We are almost always in situations where we have to make decisions under conditions of uncertainty. General rules that define a class of information that can be made into a subject of confidentiality reduce the scope of our knowledge, but they do not hinder us from making responsible decisions. A lack of knowledge as such is not manipulation. It only becomes manipulation if the target person is deliberately made to believe that her knowledge is complete and true although it is neither complete nor true. As long as the person knows that there is some more information that she is missing, she can deal with this fact by considering the uncertainty of the situation. The legitimacy of confidentiality ends where manipulation starts. This is the case when someone uses the veil of confidence in order to commit crimes or other unlawful behavior. This is the reason why, for example, whistleblowing is not a violation of the legitimate scope of confidentiality. Whistleblowing is permissible because it protects under the frame of freedom of information and freedom of expression. What I said about the question of confidentiality also applies to state secrecy on reasons of national security, territorial integrity, or public safety. Such restrictions do not concern the human right to free communication because they only reduce the scope of our knowledge and force us to decide under uncertainty. It is not a kind of manipulation.

187 10.5 · Restriction Clauses

But I should make one more remark. There is a huge difference between the admissible scope of confidentiality concerning private individuals or organizations and the admissible scope of confidentiality concerning the state. Confidentiality in favor of private individuals is or can be a matter of human rights, namely, the right to privacy that protects persons against inappropriate public control (see next lesson). Confidentiality in favor of the state, however, is not protected by human rights. In contrary, the possible scope of confidentiality in favor of the state is restricted by the principle of democracy. The state under a democratic constitution has to be a state under public control. The scope of confidentiality that the state can enjoy never covers unconstitutional or unlawful acts of public authorities. They may not hide their activities behind a veil of confidence. I come to the ground for restriction of protection of the rights of others. The prevention of disorder and crime is not to be considered separately because it serves only the protection of the rights of others. So, we can deal with these grounds for restriction together. Of course, we can imagine types of disorder and crime that have nothing to do with the rights of others. It is possible to conceive of a particular opinion as infringing the public order without any connection to the right of others. But a restriction that only oppress such an opinion would be a restriction of the right to expression that can be justified only in rare cases. I come back to these cases below. But what about the rights of others? Do they justify a restriction of human rights? The most important human right that can be violated through the exercise of the freedom of expression is the right to privacy. In fact, the right to privacy embraces several different human rights. So, it makes more sense to speak about a bundle of rights. Privacy embraces a certain scope of information about a person, which is to be treated confidential not because certain provisions of the law define it as confidential but because it is embraced by the protection scope of the human right to privacy. In order to be able to analyze the possible conflicts between the communication rights and the right to privacy it is necessary to have more knowledge about the latter. This is the topic of the next lesson. Therefore, I will come back to this point in the next lesson. The next ground for restriction is the protection of one’s reputation. Reputation or honor is the image that a person displays in the public and the way a person is perceived by

Rights of Others

Reputation

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his fellows in society. Public image constitutes the expectations that society addresses to the person concerned. I give you an example. An important element of the reputation of a person can be that she is considered reliable. A person who is considered reliable enjoys many advantages because the expectations of society make it easy for the person to pursue her objectives. Therefore, persons are interested in a good reputation. Furthermore, reputation sometimes also constitutes a certain kind of appreciation by society that confirms or even stabilizes the self-esteem of the respective person (not the self-esteem as person but the self-esteem as personality). Both examples show that reputation is a high good for everybody. The question is, however, whether the protection of reputation alone can justify a restriction of the right to freedom of expression. I think it cannot. Nevertheless, we must distinguish between two different possible attacks against the reputation of a person. The first kind of attack replaces a public image that is true with another image that is not true. This is what someone does who paints a public image of an unreliable person although the respective person is reliable. We call such an attack against reputation defamation. It is of course an aim of law to protect against such attacks. The legal oppression or punishment of defamation is not contrary to human rights. Defamation is a kind of lie and we have seen that freedom of expression does not embrace the freedom to lie. Nevertheless, not every untrue allegation is a lie. It can also be considered a mere error. And as I said above, freedom of expression embraces the right to express untrue allegations if they are based on an error and not on a lie. Still, the law can require that allegations which may cast doubts on the reputation of someone to be expressed very carefully. They are only acceptable if there is some evidence that confirm the doubts. Those who cast doubts on the reputation of another bear the risk of their possible error. It is justified to hold them liable for their error. Laws which provide regulations about this liability can therefore not be considered a restriction of the protection scope of communication rights. They refer only to the yard of these rights and not to the core. Nevertheless, it must be possible to destroy the reputation of someone if the public image of that person is wrong and she does not deserve the good reputation that she enjoys. Restrictions of the freedom of expression in order to protect reputation are only permitted when the

189 10.5 · Restriction Clauses

destruction of reputation is unjustified, but not against a justified destruction of a reputation that itself is based on a wrong public image. In order to protect the core of the communication rights, we cannot demand that the destruction of reputation only be allowed if there is definitive proof in favor of the claim that the public image of someone is wrong. It must also be possible to express serious doubts if there are serious reasons for believing that the reputation is based on a wrong image. Now I move to the ground for restriction of protection of health. A conceivable case could be the following. There is sufficient evidence for the fact that certain diseases have recently become more prevalent because of a decrease in the willingness of the population to let themselves or their children be vaccinated. In particular, the Internet is increasingly used to diffuse more opinions about which vaccination is useless or even dangerous and should thus be avoided. More and more people, in turn, come to believe in these strange statements. Can such a situation justify the suppression of the opinions of the anti-vaccination lobby? I do not think so. We can take for granted that these people do not spread lies. They believe in what they are saying. I am personally convinced that they are wrong. But error alone is not a sufficient justification for suppressing an opinion. I can hardly imagine a situation in which the suppression of an assertion or opinion can be justified on reasons of the protection of health. There is only one possibility to fight against opinions and convictions that are dangerous for health: we must find counter arguments and we must spread these counter-arguments in order to contest the wrong and dangerous positions. Let me say some words about the ground for restriction of maintenance of the authority and impartiality of the judiciary. One case is the secrecy of the deliberations of the Court. As you probably know, judges are obliged to keep secret what is discussed behind closed doors in order to reach a case decision. This is a special case of what we discussed before under the aspect of confidentiality. There is no more to say. Another case could be what is called Litigation PR. This refers to the strategic use of media reports to influence a court. There was a famous case recently in Australia concerning the trial to avoid public influence on the court. In December 2018, a court in Melbourne convicted Cardinal Pell of abusing two choirboys. The

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Authority of the Judiciary

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Morality

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court issued a “media gag order” (order of secrecy) according to which it was prohibited to report the sentence in public media in order to avoid any kind of public influence on the jury. For Pell was accused of additional instances of child abuse. Only in February 2019 did the court decide to lift the order after it was clear that Pell should not be accused of other cases. I think that the authority and impartiality of the judiciary does not justify the restriction of the press in order to reduce the public influence on the judges. Only the protection of privacy of the accused or of witnesses could give reason for an oral hearing where the public is excluded or for the anonymization of judgments. But the authority and impartiality of the judiciary does not provide any justification for the suppression of the right to expression or the freedom of information. What about the restriction ground of morality? Moral opinions or convictions are a matter of free expression and information just as any other content of communication. The suppression of public discussion of moral opinions would lead to the standstill of moral development. There is therefore in general no justification for this ground for restriction. Morality is also not a sufficient ground for restriction when it comes to a display of opinions that seem to be contrary to the common moral feelings. In Turkey, for example, a public demonstration of gays and lesbians was prohibited because the authorities regard homosexuality as immoral. Nevertheless, it seems to be obvious that certain moral preunderstandings and traditions cannot justify a restriction of human rights. Generally, we can state that the ground for restriction of morality was originally associated with sexual morality. It referred to the bigoted and uptight sexual morality of the 1950s when the ECHR was made. In the context of the right to free expression, it was to serve the purpose of suppressing pornography. In 1951, the movie “Die Sünderin” appeared, in which Hildegard Knef could be seen naked for just a second. The authorities prohibited the film but the Federal Administrative Court (BVerwG) considered it as a piece of art under the protection scope of the freedom of art (under Article 5 GG). Nevertheless, we must remember that human rights themselves are a matter of morality. And indeed there are cases possible where opinions are not compatible with the morality of human rights. Nevertheless, it can be shown that such opinions do not require a restriction of the scope

191 10.5 · Restriction Clauses

of protection of the communication rights because they simply do not fall under the protection scope of these rights. An example of such opinions are those which typically are expressed in so-called hate speech or opinions that otherwise support racism. The core content of such opinions is the denial of the human dignity of particular persons or groups by reasons of race, nationality, gender, or whatever. It can be shown that such opinions do not fall in the protection scope of any human right. In order to do so, we make use of a thought experiment. Imagine an individual who expresses hate speech and is therefore punished. He complains about the punishment and refers to the human right to freedom of expression. What is he doing exactly? He expresses disrespect about human dignity and human rights with regard to others while at the same time claiming the protection of human dignity and human rights for himself. This is not compatible with the generalized and equiprimordial character of human dignity and human rights. The hate preacher commits what is called a performative contradiction. A performative contradiction is a contradiction between the content of a proposition and the speech act by which the proposition is expressed (see . Fig.  10.4). First, I want to demonstrate it with the following example. Someone says, “I assert that: all assertions are false!” Are we supposed to take this statement seriously? No, we cannot take it seriously because the speaker expresses words without any meaning. So, it is not really an expression that is protected by the communication rights, but only an emission of sound that falls under the laws against the emission of noise.  

Performative contradiction “I assert that all assertions are false.” I assert [for true]

that

all assertions are false.

speech act (performance)

content (proposition)

I assert that X = I claim that the following assertion X is true X = “All assertions are fase” I assert that

all assertions are false.

..      Fig. 10.4  Performative contradiction

Performative Contradiction

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What the speaker seems to do, namely, expressing an assertion, includes the claim that true assertions are possible. Otherwise the assertion would not be an assertion. But what the speaker says is that assertions are always untrue. So, he express the following claim: Assertions are always untrue and there are true assertions. This is a contradiction that makes his words senseless. This is exactly what our hate preacher does. He says, “I respect the human rights (with regard to myself) when I express the opinion that I disrespect them (with regard to others).” He denies what he says (the disrespect of human rights) through what he is doing (claiming the protection of human rights). It is not possible to take this attitude seriously. It cannot be considered an exercise of freedom of expression. And because it is not an exercise of the freedom of expression, this right cannot be violated by the punishment or suppression of hate speeches. This applies not only to hate speech, but to any statement that denies the personhood of individuals or the absolute value of personhood. As a rule of thumb, statements about a person that do not enable a meaningful response of the person concerned are not protected by the right to free speech. For example, when a speaker calls someone a “pig” or a “filthy cunt,” a meaningful, logical response to begin a constructive dialogue with them does not exist. In other words, it would make no sense to say: Oh, you’re wrong, I’m not a filthy cunt. Insults of this kind make the insulted person rather silent. She is no longer respected as a conversation partner. She is not perceived as someone, but only as something. Personal insults like these and similar utterances that deny personhood do not fall within the scope of protection of the right to free thoughts and free speech. Let us move to the last ground for restriction – necessity in a democratic society. This ground for restriction is so broad and so vague that, as such, it cannot define an acceptable reason restricting the human right of freedom of expression or information. First, we have to state that the human rights as such are of necessity in a democratic society so that conflicts between human rights and democracy are hardly conceivable. Nevertheless, it is interesting, that the ECtHR very often justifies restrictions of human rights on the basis of the ground for restriction of necessity in a democratic society. It has done so, for example, in the case of the burka ban law in France. The court considered that the ban was a

193 10.5 · Restriction Clauses

restriction of the right to freedom of religion, but that this restriction can be justified under the ground for restriction of necessity in a democratic society. The Court did not explain how a certain piece of fabric that hides the face can damage the process of the public opinion making, the procedures of establishing candidates for parliament or public offices, or the procedures of the election and democratic law making. It would have been more plausible if the Court had referred to public morality in France because the concealment of the face in public in France is, like nudity, considered immoral. But as we have seen above, the ground for restriction of morality can also not justify a restriction of human rights except in the event that the opinion in question denies respect for human dignity. In fact, the ECtHR refers to the ground for restriction of necessity in a ­democratic society without taking this clause very seriously. Instead, it refers to this clause when it wants to apply to the proportionality principle. The application of this principle is only appropriate if the freedom of action is in question but not if the case falls under human rights. So, the applicability of the proportionality principle can only be considered when the case falls under the yard of a codified human right, but not if it falls under the moral core that is protected as absolute. We will deal with the proportionality principle in more detail in the 18th lesson. Let us go back to the list of grounds for restriction. We have seen that some of them lead to a real restriction of the core of the codified right. These restrictions cannot be accepted because human rights are absolute rights and do not depend on the decision of the regular legislator regardless of whether he would like to restrict them. But it is important to understand that the grounds for restriction can be applied in a way that does not lead to a real restriction of the protection scope of the human right in question. In particular, the case of the hate speech shows that restrictions are possible where they do not actually restrict the protection scope of the right in question, but only show the limits of this scope. In these cases, the restriction refers to a sphere beyond the protection scope and not to the sphere of the protection scope. It is true that Article 10 (2) ECHR authorizes the legislature to reduce and restrict the scope of protection of Article 10 (1), if we take it literally. But it is possible to interpret the restriction clauses more closely. If we do so, then, we recognize that the protection scope of the codified pro-

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Protection scope positive codification

Protection scope human right

Scope of possible restriction

..      Fig. 10.5  “Core”and “Yard” of a positive human right

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vision is much broader than the protection scope of the moral human right that can be derived from the principle of human dignity. Restrictions are possible for the area of this broader protection scope (yard) but not for the hard core of the moral human right (. Fig. 10.5). We have to read this meaning into the restriction clauses in human rights codifications. They are not supposed to restrict the human right in question, but they should restrict the content of the positively defined protection scope that goes beyond what is required by human dignity. Restrictions are possible with regard to the scope of the positive codification but not with regard to the actual human right. Although this model has been criticized very often in case law as well as in doctrine, I think it is still useful to distinguish between the hard core of moral human rights and the “yard” of legal human rights. In this way, it is possible to reconcile the absoluteness of human rights with the positivized provisions on limitations and restrictions. This position allows a criticism of the case law of the ECtHR, which does not make this distinction and holds the opinion that “necessity in a democratic society” refers to the principle of proportionality and even allows a  

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restriction of the core of human rights. Aspects of proportionality can play a role only in the sphere of the yard of the legal human right and not in the sphere of the moral core of that right. ??Do you still remember? 10.1 What is the core function of the communication rights? 10.2 What is meant by “core” and “yard” of a codified human right? 10.3 Why is the freedom of a teacher to announce his political or religious opinions and convictions in public schools not protected by moral human rights? 10.4 What is meant by a Performative Contradiction?

For the answers, see 7 Chap. 21.  

Reading Recommendations Alexander, Larry: Is There a Right of Freedom of Expression? Cambridge (UK) 2005 Jay, Martin: The Debate Over The Performative Contradiction: Habermas versus the Poststructuralists. In Axel Honneth/Thomas McCarthy/Claus Offe/Albrecht Wellmer (eds.), Philosophical Interventions in the Unfinished Project of Enlightenment, Cambridge (MA) 1992,, pp. 261–279 Sadurski, Wojciech: Freedom of Speech and its Limits. Dordrecht 1999

Case Law BVerwG, jud of 21/12/1954 – I C 14/53 –, “Die Sünderin“, BVerwGE 1, 303 ECtHR jud. of 17/12/2004  – 33348/96 –, “Cumpănă and Mazăre v. Romania”, HUDOC ECtHR Jud. of 01/07/2014 – 43,835/11 –, “S.A.S. v. France“, HUDOC

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The Human Right to Privacy Contents 11.1

The History of Privacy Rights – 202

11.2

The Need for Privacy – 203

11.3

 he Particular Rights to Privacy in Light of T Goffman’s Theory – 206

11.3.1 11.3.2 11.3.3 11.3.4 11.3.5 11.3.6

T he Right to Privacy in One’s Home – 206 The Right to Private Life – 206 The Right to Freedom of Marriage – 207 The Right to Freedom of Establishing a Family – 207 The Right to Family Life – 208 The Right to Privacy in One’s Correspondence – 209

11.4

Protection of Social Ties (“Rootedness”) – 209

11.5

L imiting Clauses of the Codified Human Rights to Privacy – 210 Reading Recommendations – 214

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_11

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Function of the Privacy Rights

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The core function of the privacy rights is the defense of the freedom of will against self-alienation by fixation on role-identities. In the public sphere, persons must suppress important parts of their personality in order to meet the expectations and ascriptions of society. They do not display in public the personality who they really are, but rather they display a specially shaped and distorted image of their personality that can be called their role-identity (Erving Goffman). The permanent display of a role-identity leads to the person’s loss of consciousness about who she really is, i.e. about the components of her real personality. She thus becomes, so to say, a marionette of social expectations and loses the ability to determine herself on the basis of a real understanding of herself. This leads to a systemically distorted process of will making that cannot be considered authentic. This leads to the state of self-alienation (Goffman). The privacy rights refer to the protection of an authentic will-making process by ensuring a sphere of life in which persons are not forced to display a role-identity. The particular privacy rights refer to particular protected areas of life where persons are not exposed to the public so that they can experience the personality they really are and build a free will on the basis of their real personality. While privacy in general is absolutely needed to protect human dignity, which areas should be defined as areas of privacy depend on the specific social and cultural situation. This is at least partly a matter of positive law.

The Right to Privacy in One’s Home The home is a place of stay that may not be observed from the outside. Inhabitants can behave inside the home without being coerced to play a role in front of a public audience.

The Right to a Private Life The right to a private life (Article 8 ECHR) embraces not only the life inside one’s own flat, but also private activities and communications within the frame of close and intimate relations outside the home (e.g., a private talk on a walk in the park).

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The Right to Freedom of Marriage Freedom of marriage does not only embrace the right to freely choose a spouse and to marry him or her, but also the right to not being forced to marry (negative right). A person who is forced to get married is deprived of the opportunity to establish an intimate relationship with a sexual partner when she is forced to live with a partner with whom there is no intimate relationship. Thus, the aggrieved person is permanently forced to perform a role-identity in front of the spouse.

The Right to Freedom of Establishing a Family The right to freedom of establishing a family refers to the freedom to choose whether to have children. Considering that the relationship between parents and children is a very intimate one, it would be a severe violation of the right to privacy to force someone to have children or to hinder him/her in having children (e.g., the one child policy in China).

The Right to Family Life The right to family life protects the close and intimate relation between spouses and between parents and children. Nevertheless, the moral right to privacy encloses any kind of relation where there is a very close and intimate relationship between partners. From a moral point of view, this right does neither depend on certain sexual preferences nor on any sexual character of the relationship. The protection scope embraces therefore homosexual relationships as well as non-sexual close relationships (parents with their adult children, monks and nuns in a small monastery, intimate residential communities between friends, etc.). The codified protection scope here (family life) is not wider but narrower than the protection scope of the moral human right. This is particularly the case when the term “family” is interpreted as necessarily based on a heterosexual relationship.

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The Right to Privacy in One’s Correspondence The right to privacy in one’s correspondence extends the area of privacy beyond the immediate spatial area of a particular communication to certain types of remote communication. This is due to increasing mobility in the modern world. Many people who are in an intimate relationship live spatially far away from each other and cannot use the protected space of a flat for their communications. There are types of correspondence that do not fall under the protection scope of the moral right to privacy, for example, business correspondence. Correspondence is a type of remote communication that traditionally involves sending physical letters. More modern types of remote communication are telecommunication or Internet communication. Which types of remote communication are to be regarded as deserving protection under the right to privacy depends on the technical standards and the life style of the given society in which the communication occurs. It can hardly be only derived from the principle of human dignity and instead requires additional political and practical consideration.

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Right to Data Protection The right to protection of personal data prohibits the collection of personal data that is not permitted by law and for a specific purpose. Additionally, under this right, data may not be collected longer than is necessary to fulfil the stated purposes. It similarly contains the right to be informed about a collection of personal data, the prohibition of using the data for other purposes than the stated purposes, and the right to get access to the one’s own personal data.

Social Integration The ECtHR refers to the right to private life in order to protect the social ties of a person that go beyond intimate relations. It is about the “rootedness” of a person in the society. This case law was developed in the context of cases about aliens who were to be expulsed

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or deported from a country in which they had lived for a long time and where they were well integrated. The Court considers the expulsion or deportation of an alien a violation of private life if the compulsory termination of the stay in the inland is at the same time an uprooting. Uprooting takes place where the sufficiently dense network of social relations is cut off. It is, however, questionable whether the dense network of social relations can be understood as an aspect of the right to privacy. Obviously, such a right has nothing to do with protecting one’s own personality from the threats of permanently displaying role-identities. Perhaps, the aspect of social rootedness can be covered by an unwritten human right sui generis that we could call the Right to Membership or the Right to Heimat. It is a desideratum of future research to clarify whether such a right can be derived from human dignity.

Statutory Reservations Penetrating the area of privacy by public security agencies is in accordance with the moral core of the right to privacy only if the hidden sphere of privacy is misused for purposes which have nothing to do with the restitution or maintenance of the real personality of persons. This is the case when privacy is used to commit or to plan crimes. Nevertheless, such penetration is only justified if the crime or the planning of crimes really occur and not if there is a (false) suspicion of criminal activities. It can also be necessary to penetrate into the sphere of privacy against the will of the persons concerned in the event of an emergency—for example, if an epidemic requires removing persons from their flat and into quarantine. Nevertheless, in these cases it is always possible to avoid a conflict with the right to privacy. In particular, it is possible to make the impending penetration known to those concerned in advance so that they may prepare for it by putting on the mask of their role-identity. Clandestine observations in the private sphere are, however, very problematic and hardly justifiable (see case law concerning eavesdropping operations).

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11.1 

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The History of Privacy Rights

While the history of most classical human rights begins in the 17th or 18th century, the right to privacy is a “discovery” of the 19th century. The birth certificate of the right to privacy is an essay given by American law professors Samuel D.  Warren (1852–1910) and Louis D.  Brandeis (1856–1941) published in 1890. The right to privacy is a very good example of how individual human rights respond to specific threats to human dignity based on the conditions of life in a particular age. In the case of the right to privacy, these were the particular threats created by the advent of Yellow Journalism. This phenomenon is again connected with a new technical invention, namely the roll film and the rapid spread of the Kodak camera developed by George Eastman in 1888. It allowed for snapshots to be taken for the first time and thus the dissemination of pictures from the private lives of celebrities. As a result, the life situation of people who are constantly under public observation was brought to a wider consciousness. That created a sense of the value of privacy. Consequently, Warren and Brandeis demanded a right to privacy. It was not developed from considerations about human dignity. Warren and Brandeis argued, rather, on the basis of traditional common law as it had been developed for centuries by the English courts. So, they argued along the lines of breach of confidence, property rights, and the ban of defamation and the like. The article initially had great influence on the legislation of many US states, which established a right to privacy by statute. In 1928, Brandeis, now a judge on the US Supreme Court, declared in a dissenting vote that the US Constitution guaranteed a “right to be let alone” (Olmstead v. US). The Supreme Court finally accepted that view in 1967 (Katz v. US). At the level of human rights, the right to privacy already appears in the UDHR (Article 16), in the ICCPR (Article 10), and in Articles 8 and 12 ECHR see . Fig.  11.1). The right to privacy is a general term that embraces several particular human rights. From these codifications follow six different rights that can be summarized under the broader term privacy rights. These rights are the following: 55 The Right to Privacy in One’s Home 55 The Right to Private Life 55 The Right to Freedom of Marriage  

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Article 8 ECHR (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by the public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society, in the interest of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 12 ECHR Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

..      Fig. 11.1  Article 8 and 12 ECHR

55 The Right to Freedom of Establishing a Family 55 The Right to Family Life 55 The Right to Privacy in One’s Correspondence It could be considered whether it makes sense to regard the right to the freedom of religion and the right to the freedom of conscience as privacy rights in a broader sense. Nevertheless, these rights should be treated in separate lessons. For it is still not common to regard them as privacy rights. 11.2  The Need for Privacy

I start the analysis of the protection scope of privacy with a reference to a very famous book that was published first in the year 1959: The Presentation of Self in Everyday Life by Erving Goffman. The function and value of privacy can be well explained on the basis and before the background of Goffman’s concept of role-identity. The German sociologist Niklas Luhmann shared a similar approach, which may have been influenced by Goffman. Still, he identified the term privacy with the term human dignity, which is not very useful. Interactions between persons are usually carried out under the condition that the participants of the interaction know far less about each other than they need to

Self-dramatization

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Self-alienation

know in order to respond appropriately and effectively to the actions of other participants. In the absence of sufficient information, they therefore rely on the impressions that they can gain from the other participants. In other words, they rely on the image they have of them. Considering that each participant in an interaction knows that everyone is dependent on the impressions that each make on another, participants are motivated to behave in a way so that they cause the impression that they intend to cause, so that they will be treated by others as they want to be treated. So, a given participant will put himself in scene and perform a self-dramatization. The impression that someone performs is perceived by the others as an allegation, namely, an allegation that the performer is in reality as he appears to be. At the same time, the performance is considered a promise, namely the promise to behave permanently and constantly in accordance with the displayed personality. Nevertheless, the allegation that the participant is the personality which is displayed through the performance, so that others may rely on it, is always fundamentally false. Indeed, persons are spontaneously determined by affects, moods, mental and emotional impulses, and uncontrolled bodily reactions that are largely subject to unforeseeable fluctuations. People who behave in accordance with their spontaneous impulses leave no impression of a consistent and coherent personality whose behavior is sufficiently predictable, so that others may count on it in everyday interactions. They tend to act like small children, who are guided by their spontaneous emotions, moods and impulses, and are therefore not taken seriously as a partner of an interaction between adults. In order to ensure a successful interaction, participants must thus suppress their spontaneous emotions, moods, and impulses. This has the consequence that the impression they display does not correspond to what they really are, but is rather a mask behind which they play a role in front of spectators. So, participants in an interaction always play theatre in front of each other. The staging follows a specific role with which actors consciously or subconsciously identify themselves in the manner that they want to be seen by the audience (= the other partners of the interactions). Now comes the crucial point. The necessity of always having to play a role in interpersonal interactions can lead to the result that the individual inadvertently internalizes the role in such a way as to no longer being able to distin-

205 11.2 · 11.2  The Need for Privacy

guish between his true self and his role-self. In such cases, the individual is not only the performer, but at the same time, the spectator of his own performance. He considers the impression of himself, which he performs in front of others, as the only reality of himself. He becomes part of his own audience. This only occurs when he hides all the discreditable facts about himself from his own awareness. In such a case, there will be some important aspects of his personality that he is no longer aware of and therefore denies. This is called the state of self-alienation by Goffman. In the state of self-alienation, the individual can no longer determine his own life according to his own will and his own values. He no longer leads his life anymore. His life is rather led by the ascriptions and expectations of the audience for whom he plays his role. At this point, privacy comes into the play. In order to avoid self-alienation and to maintain the awareness of one’s real personality, it is necessary to not reside permanently on a “stage.” Thus, in addition to the interaction space of the stage, there must be a space that Goffman calls “backstage.” In contrast to the situation on the stage, the audience is excluded from the backstage. Social interaction does not take place here or is reduced to a minimum. The individual remains unobserved and is not forced to perform a role. Here the individual can relax from all the efforts that come along with the maintenance of role identity. He can unwind and “fall out of character”; he can let drop the mask, loosen his self-control, and behave exactly equivalent to his spontaneous affects, emotions, impulses, and moods. In this way, we can experience ourselves as we really are. From this experience, we can build a distance to the roles that we have to play on the stages of life. This distance allows us to take positions with regard to the roles that we play. We can reflect on our roles or modify them, test them, and try to practice new roles. Thus, the individual is able to lead his own life on the basis of his own authentic considerations and reflections and not become a passive plaything of alien ascriptions and expectations. What Goffman calls the backstage is what is meant by privacy. Privacy refers to a certain sphere of life that is hidden from the views of others. The scope of this sphere has to be exactly as large as it is necessary and sufficient to make it possible to loosen self-control and to be the personality that a person really is, including all the aspects that cannot be displayed in the public. The requisite extent

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Privacy as Backstage

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of privacy depends on the amount of efforts a person has to invest in order to play her role. This is why the extent of the sphere of privacy depends on the overall social situation. 11.3  The Particular Rights to Privacy in Light

of Goffman’s Theory

Against the background of Goffman’s theory, it is easy to understand the function of the particular privacy rights. 11.3.1  Home

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The home is a place of stay that may not be observed from the outside. Inhabitants can behave inside the flat without being coerced to play a role in front of a public audience. The flat is surrounded by walls and is therefore not visible without particular effort, for example, the clandestine installation of cameras or microphones. The right to privacy in one’s home includes the prohibition against penetrating the flat without the consent of the owner. This is what traditionally is called the domestic peace. 11.3.2 

Private Life

The Right to Privacy in One’s Home

The Right to Private Life

Private life embraces not only the life inside one’s flat, but also a certain behavior outside the home, in particular, close and intimate communication with other people. So, privacy protects, for example, a private talk with another person during a walk. This shows that privacy relates to more than just the individual when he is alone. It also embraces close and private relationships with other people. The ECtHR decided, for example, that the Princess of Monaco can claim a certain sphere of privacy in the middle of the public, e.g., when she is sitting in a restaurant with her family. Another very important example for the protection of privacy while standing in public is the prohibition of permanent surveillance of employees by cameras during their worktime. After all, control over one’s own personal data (right to informational self-determination) is a particularly important aspect of the right to privacy in

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our days. It was established for the first time by a statute of the German state of Hesse in 1970 and recognized as a constitutional human right by a decision of the Federal Constitutional Court in 1983. On the supra-national level, it was codified as a human right in Article 8 of the Charter of Fundamental Rights of the European Union of 2007. In 2008, the ECtHR confirmed the right to the protection of personal data as derived from Article 8 ECHR. The right to private life also embraces the impenetrability of one’s body. Therefore, body scanning against or without the consent of the person concerned is a violation of privacy. Involuntary drug and alcohol testing or involuntary blood sampling for the detection of drug use also fall under the protection scope of privacy. Investigations that seek to determine the sexual orientation of a person against her will or without her consent is another example. 11.3.3 

The Right to Freedom of Marriage

Freedom of marriage does not only embrace the right to freely choose a spouse and marry him or her, but also the right to not being forced to marry. A person who is forced to get married is deprived of the opportunity to establish an intimate relationship with a sexual partner because she is forced to live with a partner with whom there is no intimate relationship. Having an intimate relationship, after all, requires that a person have the opportunity to freely choose his/her partner. Otherwise, the partner is and remains a “stranger in my bed” in front of whom the coerced person must play a role. Forced marriage therefore leads to the absence of privacy. 11.3.4 

Marriage

 he Right to Freedom of Establishing T a Family

The right to freedom of establishing a family refers to the freedom to choose whether to have children. Considering that the relationship between parents and children is a very intimate one, it would be a severe violation of the right to privacy to force someone to have children or to otherwise hinder their attempts to have children  – for example, the former one child policy in China.

Family

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11.3.5 

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The Right to Family Life

The right to family life protects the close and intimate relation between spouses and between parents and children. Nevertheless, there are of course also other intimate relations that fall under the protection scope of the moral right to privacy. From a moral point of view, this right also covers close homosexual relationships and non-­sexual close relationships (for example, parents with their adult children, monks and nuns in a small monastery, intimate residential communities between friends, etc.). The codified protection scope here is not broader, but narrower than the protection scope of the super-positive moral human right. Therefore, it is up to human rights courts to extend the protection scope to these types of relations. They will do so if they have an appropriate understanding of the core function of the right to privacy. This point gives us the opportunity to consider whether courts have the constitutional competence to widen the meaning of the concept “family” in order to cover other forms of intimate relations according to what is demanded by human dignity. The German Federal Constitutional Court (BVerfG) is here in a privileged position because it can ground any such decision on Article 1 of the German Constitution, which contains the human dignity principle. So, it is no problem for the BVerfG to refer directly to this principle. The ECHR does not contain a reference to the principle of human dignity. Therefore, it is a little bit more difficult for the ECtHR to find a basis of legitimization for widening the protection scope of codified human rights. Nevertheless, it is not impossible. According to the case law of the ECtHR, the ECHR is to be interpreted as a “living instrument.” This means that the appropriate understanding of the convention and its particular articles is something that depends on the development of the prevailing cultural and moral consciousness. Therefore, the meaning of the human rights codifications cannot simply be found by asking for the historical background at the time in which the codifications were drafted. The meaning of the codified human rights, rather, should follow the currently prevailing understanding of society with respect to our moral duties and rights. This allows for widening the meaning of the concept of family beyond the traditional understanding.

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The doctrine of the codified human rights as living instruments is an entrance gate that makes it possible to make philosophical arguments influential in the case law relating the ECHR. Philosophical analyses can contribute to a deeper understanding of the meaning of human rights. These considerations show that the legal accessibility of same sex marriage is not only a matter of legal discretion and political influence, but also, in the first place, a matter of human rights. 11.3.6 

 he Right to Privacy in One’s T Correspondence

The right to privacy in one’s correspondence extends the area of privacy beyond the immediate spatial area of the communication in accordance with the type of remote communication. This is due to the increasing mobility of the modern world. Many people who are in an intimate relationship live far away from each other and cannot use the protected space of a flat for their communication. They thus depend on remote communication. Correspondence is a type of remote communication that traditionally involves sending physical letters. More modern types of remote communication are telecommunication or Internet communication. Which types of remote communication are to be regarded as deserving protection under the right to privacy depend on the technical standards and the life style of a given society. Such can hardly be only derived from the principle of human dignity and instead requires political and practical considerations. Here we find another example for the ECHR as a living instrument. 11.4  Protection of Social Ties (“Rootedness”)

The ECtHR also addresses the protection scope of private life in cases concerning wider social relationships. According to this case law, the compulsory termination of a foreigner’s stay in the inland may be a violation of private life if the expulsion or deportation is at the same time an “uprooting” where the foreigner is cut off from his or her wider social relations. Such cases include, for example, where children are cut off from their school classes and their relationships

Correspondence

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with classmates, or where foreigners are cut off from their football team or their integrated role in a team of colleagues at the work place. Nevertheless, social relations at the work place, at school, or in a football team are just the opposite of what is meant by the “backstage” of privacy. Cutting off such relations can hardly be considered the interruption of very close and intimate relations. I guess that the ECtHR discovered here a new and unwritten right that is different from the right to privacy, which therefore does not fall under the protection scope of Article 8 ECHR. I think it would thus much clearer to name the right differently. Perhaps it could be called the right to membership or the right to affiliation. In any case, this right is a right in its own. But it seems to me not clear whether it can be regarded as a human right, i.e. a right that can be derived from the principle of human dignity. This would only be the case if rootedness in a particular society could be considered a required condition for the development and maintenance of personhood. I think it is conceivable that this right is based on a different principle, namely, the principle of equality. I must confess that I have not yet sufficiently thought about this question. So, I must leave it open here.

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11.5  Limiting Clauses of the Codified Human

Rights to Privacy

Now we know what is meant by privacy and why and to what extent it is a required condition for the maintenance of personhood. So, let’s move on to the codified provisions concerning possible restrictions. Article 12 ECHR (the right to marry and to establish a family) contains the phrase “according to the national laws governing the exercise of this right.” But this clause may not be considered as a restriction clause. It provides only a formality, namely, the procedure by which the marriage takes place. Article 8 (2) ECHR, however, contains a restriction clause that is as far encompassing as the restriction clauses of the communication rights (see 7 Chap. 10). It is thus necessary to examine in detail the extent to which it addresses meaningful demarcations between the core and the yard of human rights or whether it is, in fact, about a non-acceptable license to interfere with the core of the human rights.  

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Article 8 (2) empowers public authorities to interference with the rights to privacy under certain conditions. Provided that public authorities act in accordance with the law, they may interfere for the following reasons: 55 interest of national security or public safety 55 protection of the rights and freedoms of others 55 prevention of disorder or crime 55 protection of health 55 economic wellbeing of the country 55 protection of morals 55 necessity in a democratic society As noted above (see 7 Sect. 10.5), the enumerated grounds for restriction are only accessible when public authority acts in accordance with the law. This provision refers again to a statutory reservation. Everything that I have said about similar clauses in the context of the communication rights applies here as well. So, let’s instead focus on the restriction clauses themselves. The ground for restriction of the interest of national security and public safety as well as the prevention of disorder and crime and the protection of the rights and freedoms of others refer more or less to the same purpose. They can deliver a justification for penetrating into the scope of privacy if this hidden sphere is misused. We can speak about a misuse if the private sphere does not serve the purpose of providing a space for recovery from the efforts of public representation on the stage, and instead is used as a space to plan or commit crimes. The preparation or the commission of crime is neither necessary nor sufficient for this recovery. Therefore, the function of privacy is not interfered by an intervention in the private sphere for the purpose of preventing crime. Engagement with the absolutely protected core area of human rights does not take place. Nevertheless, this only applies if a misuse really happens, not just when there is only a suspicion of criminal ­activities that turns out to be false. A misuse of privacy can only be considered as such if the planning or commission of crimes is not only a small side-effect that occurs within the frame of private life. The perpetration into privacy is therefore no violation of the core area of the human right of privacy where criminal activities play a dominant role. We can thus only accept such interference in cases of very serious crimes.  

National Security, etc.

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Protection of Health

Economic Wellbeing of the Country

The conflict between the protection of privacy and the prevention of crimes particularly occurs where penetration into the private sphere has to be clandestine in order to be successful. An extremely hard case is the case of eavesdropping operations. An eavesdropping attack consists of the continuous clandestine observation of a private flat by means of electronic devices, where everything that happens in the flat is recorded. The inhabitants of the flat are not aware of the operation and cannot therefore behave in an appropriate manner. They behave as though they were in the backstage, while remaining in fact on the stage. The German Federal Constitutional Court holds the opinion that eavesdropping operations are nevertheless in accordance with the human right to privacy if the records, which refer only to the private activities, are deleted immediately so that afterwards only the criminal activities are on the records. Still, it is unavoidable that policemen will first have to listen to the private activities before they can delete them. Therefore, eavesdropping operations seems to me to be marginally justifiable, if at all. In the conflict between public security and the human right to privacy, we must decide which is more important. I think security is not a value as such. Security is rather the security of human rights. Therefore, we cannot balance security with human rights. It makes no sense to defend a good by destroying it. Much less problematic is the penetration into privacy when the person concerned is aware of the situation. In this case, the person can behave adequately by displaying a role on the stage. So, when the policemen knock at the door and demand entry, there is in principle no conflict between privacy and the prevention of crimes. In the case of the protection of health, I cannot imagine a case in which it would be necessary to secretly invade privacy. There could be cases in which it is necessary to penetrate a flat in order to quarantine people with ­infectious diseases against their will. But there is no reason to do that secretly. It is therefore always possible to avoid the conflict between the right to privacy and the protection of health. The economic wellbeing of the country can never provide a justification for an intervention into privacy. There are cases where the destruction of flats and the resulting homelessness of the inhabitants were justified under the mantle of the economic wellbeing of the country. The building of sport stadiums or shopping centers or factories are consid-

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ered necessary for the economic wellbeing of the country and serve as justification for the deprivation of privacy. It is obvious that this kind of justification cannot be convincing. A different case is where the state offers alternative appropriate accommodation. Such does not result in a conflict between the human right to privacy and the economic interests of the country. So, expelling people from their home in order to set up mines or water reservoirs may be justifiable if the state provides for alternative accommodation. The protection of morals can never justify an intervention into privacy. As long as the rights of others or the national or public safety or the public health is not affected, morality, excluding the morality of human rights, is a private issue and not a public aim. Therefore, there is no one case imaginable where the protection of morality as such could justify an intervention into the right to privacy. As you might remember, I mentioned in the last lesson that the ground for restriction of the protection of morals can be understood only before the background of the bigoted and uptight sexual morality of the 1950s. Morality in such a context only means sexual morality and applying the statutory reservation in favor of the protection of morals in the context of privacy would then serve the purpose of disturbing and oppressing sexual interactions between unmarried couples. I have said everything about the ground for restriction of the necessity in a democratic society in the last lesson and, accordingly, it is not necessary to repeat the discussion. So, we have seen that the right to privacy, like the right of free expression, embraces a wider protection scope than is required by the principle of human dignity. So far, as the protection scope embraces areas beyond the scope of human dignity, i.e., beyond the conditions of ­personhood, restrictions are possible because we are dealing here with a simple positive right. But insofar as the right to privacy can be derived from the principle of human dignity, it must be recognized as absolute. Under such a conception, the right to privacy would not allow any restrictions. ??Do you still remember? 11.1 What is the core function of the rights to privacy? 11.2 Why can forced marriage be considered a violation of the rights to privacy? 11.3 Why is it problematic to consider the relations between a foreigner and the society of the host country as a matter of privacy?

Morality

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11.4 Why is the protection of morals not a justified reason for a restriction of the rights to privacy?

For the answers, see 7 Chap. 21.  

Reading Recommendations Goffman, Erving: The Presentation of Self in Everyday Life. Edinburgh 1956. http://monoskop.­org/images/1/19/Goffman_Erving_The_ Presentation_of_Self_in_Everyday_Life.­pdf Geuss, Raymond: Private Goods. Princeton 2001. Luhmann, Niklas: Grundrechte als Institution. Ein Beitrag zur politischen Soziologie. 4th ed. Berlin 1999 Wacks, Raymond: Privacy. A Very Short Introduction. 2nd ed. Oxford 2015 Warren, Samuel D. / Brandeis, Louis D.: The Right to Privacy. In Harvard Law Review, 4/5 (1890), pp.  193–220.  – https://www.­cs.­ cornell.­edu/~shmat/courses/cs5436/warren-brandeis.­pdf

Case Law

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BVerfG, judg. of 15/12/1983, 1 BvR 209/83 –, BVerfGE 65, 1 (Volkszählung) BVerfG, judg. of 03/03/2004  – 1 BvR 2378/98 –, BVerfGE 109, 279 (eavesdropping attacks) ECtHR judg. of 25/04/1978 – 5856/72 –, Tyrer v UK , HUDOC (living instrument) ECtHR judg. of 24/06/2004  – 59320/00 –, Caroline von Hannover v. Germany, HUDOC (privacy in public) ECtHR jugd. of 18/10/2006  – 5856/72 –, Üner v. The Netherlands (rootedness) ECtHR judg. of 17/07/2008 – 20511/03 –, I v. Finland (data protection) US Supreme Court, Olmstead v. United States, 277 U.S. 438 (1928) US Supreme Court, Katz v. United States, 398 U.S. 347 (1967)

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 he History of the Legal Concept T “Conscience” – 218

12.2

The Mechanism of Conscience – 222

12.3

I s the Right to Freedom of Conscience a Human Right? – 226 Reading Recommendations – 230

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_12

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The History of the Concept “Conscience”

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Conscience as a legal concept appeared for the first time in the treaties of Westphalia of 1648, thus terminating the 30 Year’s war in central Europe. In order to avoid further religious wars, the contracting parties accepted the freedom of their subjects to exercise their religion according to their own free conscience (“conscientia libera”). The drafters of the treaty considered conscience as a kind of inner organ by which individuals are able to conceive the commandments of God. These commandments referred to the way that worship should be celebrated as well as to the way that believers should treat their fellow humans (moral rules). In the time of the Enlightenment, philosophers considered rules of worship more or less irrational and the rules of morality as commandments of reason. This led to a change in the meaning of the concept of conscience. Conscience no longer referred to the commandments of God, but to the commandments of reason concerning the moral duties toward fellow humans. The connection between religion and conscience was cut off (Samuel Pufendorf, Christian Thomasius). Christian Wolff and Immanuel Kant distinguished further between morality and law. Both refer to the duties toward fellow humans, but the moral duties are duties toward oneself due to the own conscience while the legal duties are duties toward the community due to the laws of the community. Further progress of the history was characterized by a confusion between the older concept of conscience from the time of the Reformation and the more recent concept of conscience from the time of the Enlightenment. This confusion is made clear by the fact that, in most codifications, conscience and religion are still closely related to each other. For the first time in the year 1960, a clear distinction between the legal concepts of conscience and religion was made by the BVerfG.

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Definition of the Concept “Conscience” Conscience is (1) the knowledge of the standards of morality and (2) the conviction to be bound on them by identification. Moral standards are standards of being a “good” human being (like standards of legal counseling are standards of being a “good” lawyer). A person who is acting or has acted against moral standards to which she feels bound, will reject herself as a human being because she considers herself someone who is “not good at her job” as a human being (just as a lawyer who fails to competently provide legal counsel will reject himself as a lawyer because he is not good at his job as lawyer). Moral shame is the reaction of self-rejection because of a personal deficiency relating to moral standards. In order to avoid the feeling of moral shame, the respective person is forced to cease being a human being (like the incompetent lawyer is forced to cease being a lawyer in order to avoid professional shame). The only way to give up being a human being is suicide. In order to avoid suicide, most human beings choose strategies of coping with moral shame, namely transforming shame into feelings of guilt or flights into neurotic displacements.

The Function of the Right to Freedom of Conscience The core function of the right to freedom of conscience is the defense of the freedom of will against a feeling of moral shame from which the person concerned can only escape by suicide or by neurotic self-alienation. Freedom of conscience is the freedom from the coercion to act contrary to one’s own moral convictions. A person who is coerced to act contrary to their own conscience cannot transform the feeling of shame into a feeling of guilt because it is not possible to regret an evil action while being forced to commit the evil act in question. The freedom of conscience embraces only the right to reject any kind of cooperation that is considered evil by the person concerned. It does not embrace the right to hinder others in doing what the person concerned considers evil. Freedom of conscience does not establish a moral power over other agents and their actions, but only moral power over oneself and one’s actions.

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The Right to Freedom of Conscience as Privacy Right The right to the freedom of conscience belongs to the group of privacy rights. It refers to the relation of a person with herself as a moral entity. Its function is the protection of this self-relation. From this follows that the right to freedom of conscience does not include the right to rule over others by disturbing or sabotaging their actions on reasons of the own conscience.

12.1  The History of the Legal Concept

“Conscience”

Treaty of Westphalia

12

In this lesson, I want to deal with the right to freedom of conscience. It is interesting to note that national and international codifications on human rights always address this right in the context of the right to religion. This becomes understandable when we consider the history of that right. The concept of “Conscience” as a legal concept appeared for the first time in the treaty of Westphalia from 1648, which ended the 30-Year’s War (1618–1648). This was primarily a religious war between the Catholics and the Protestants of central Europe, in particular in Germany. One of the most important aims of the treaty of Westphalia was to end the war and establish rules for living together for the two Christian denominations in order to avoid future wars based on religious reasons. Therefore, the contracting parties accepted the freedom of their subjects to exercise religion according to their own “conscience.” The treaty of Westphalia guaranteed the freedom to exercise those religious rites in private and in public that correspond to one’s own conscience. The drafters of the treaty considered conscience a kind of inner organ which is able to conceive the commandments of God (see . Fig.  12.1). These commandments referred to the way that worship should be celebrated as well as to the way that believers should treat their fellow humans. Conscience was therefore considered an organ that can receive knowledge about ritual as well as moral rules. The disagreements between the Christian denominations referred only to rules of rites and their attending theological ideas, and not to questions of morality. In terms of morality, there was no relevant difference between  

219 12.1 · The History of the Legal Concept “Conscience”

Conscience (Pre-Enlightenment)

GOD

..      Fig. 12.1  Listen to God’s commandments

Catholics and Protestants. This was the reason why the matter of the freedom of conscience was more or less identified with the freedom of religious rites (in the frame of Catholicism and Protestantism). Only a 100 years later in the time of the Enlightenment did this understanding of conscience became questionable. First, philosophers realized that it is quite strange that Catholics and Protestants claim to hear the voice of God while hearing different things. The idea of conscience as an inner organ by which it is possible to receive messages from God became more and more implausible (Locke). The philosophers Samuel Pufendorf (1632–1694) and Christian Thomasius (1655–1728) were the first who distinguished between religion, morality, and law. According to their opinion, religion refers to the duties toward God and morality refers to the rules toward oneself, while law refers to duties towards the community and towards fellow humans. Immanuel Kant (1724–1804) distinguished further between morality and law, but for him the content of morality refers also to the community and to fellow humans. Only the reason behind the binding power of moral rules and legal rules is different. Moral rules are rules toward oneself which are to be fulfilled toward others. Legal rules are duties toward the community which are also to be fulfilled toward others. The German philosophers Christian Wolff (1679– 1754) and Immanuel Kant claimed that conscience is not an organ by which we can receive information from outside, but that it is part of our reason. In conscience, the voice of reason comes to hearing. The philosophy of the

Enlightenment

Romanticism

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Enlightenment was strongly focused on whether and to what extent it is possible to derive the moral rules from principles of reason. Rules concerning religious rites were considered quite irrational and delusional. This public reasoning about morality and religion led to a change of meaning of the concept of conscience. Conscience no longer had to do with religion or with the voice of God, but rather with morality and the voice of reason. A concept that correctly expressed the capacity to understand the religious rules of rituals and worship was no longer needed because the philosophers of the Enlightenment considered such rules as complete nonsense and superstition. Only in the age of Romanticism, which lasted from the 80s of the 18th century until the mid-19th century, did considerations about religion change again. The age of Romanticism was a cultural movement in central Europe that affected all kinds of art (literature, painting, music) and had its center in Germany. Philosophy was not so stressed in this age because philosophy is something that has to do with reason while the spirit of the Romanticism was very critical to reason. In particular, the results of the French revolution, which ended not in a rational state of freedom and equality but rather in a state of irrational terrorism, led to this development. Irrationality in the form of feelings, emotions, and impressions became the focus of interest. Consequently, it is easy to understand that religion was taken more seriously than before. Religious rituals were again considered something important and valuable. Nevertheless, it was not possible to re-establish the former meaning of conscience as it was understood in the time before the age of Enlightenment. Too strong was the occupation of the concept through the philosophy of the Enlightenment. This situation became a problem when the State of Belgium was founded in the year 1830 and the Belgians had to draft a new Constitution (see . Fig.  12.2). They wanted to protect the free exercise of religion, but they could not use the term “conscience” in order to avoid  

Freedom of worship, its public practice and freedom to demonstrate one’s opinions on all matters are guaranteed, … ..      Fig. 12.2  Article 14 Belgian Constitution of 7. Feb 1831

221 12.1 · The History of the Legal Concept “Conscience”

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. ..      Fig. 12.3  Article 9 (1) ECHR

the confusion, which was connected with the concept of conscience after its treatment by the philosophy of the Enlightenment. So, they found a completely new formula. This formula refers firstly to the freedom of worship and secondly to the freedom of expression. The first refers to religious practice while the latter refers to opinions of all matters, including, of course, religious matters. The concept of conscience was completely avoided. This new formula was partly taken over by the German Constitution of the Paulskirche of 1848 and the Prussian Constitution of 1850. In contrast to the Belgian Constitution, the new language took over the traditional formula of “faith and conscience”, respectively “conscience and religion,” and added the new aspect of free exercise of religion. This new wording became part of the German stock of traditional constitutional formulas and is now part of Article 4 GG. After World War II, it found its way into the international human rights instruments including Article 9 ECHR (see . Fig. 12.3). Here again we find the twin formula of “conscience and religion” and the additional explanation of what is meant by this formula. Despite of this history, the concept conscience provokes much confusion today, specifically as to the meaning and the differences between religion and conscience. In Germany, this confusion lasted until 1960 when the German Federal Constitutional Court distinguished for the first time ever in the world – as far as I can see – the meaning of conscience from the meaning of religion and religious practice. Up to this date, the importance of the concept of conscience as a legal concept was not clear. It was debated whether it must be interpreted in the meaning of the age of Enlightenment, or in the meaning of the age of the Reformation. So, we find case law of the ECtHR that still does not differentiate between religion and conscience. In a

Twin Formula

 

Definition of “Conscience”

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judgment of 2013, the Court says that “[r]eligious freedom is primarily a matter of individual thought and conscience.” In contrast to this confusion, the BVerfG distinguishes precisely between religion and conscience by the following definition of the term “conscience”: “‘Conscientious decision’ is any serious moral, i.e. based on the categories of ‘Good’ and ‘Evil’, decision, which is internally experienced by the individual concerned as binding and as unconditionally obligating him in a certain situation, so that he cannot act against it without having serious moral distress.” This definition shows that conscience does not have to do with being religious or not religious or with obedience or disobedience toward rules of worship, but rather that it is about good and evil only. It refers to moral judgments and to the conviction of being bound to these judgments. 12.2  The Mechanism of Conscience

12

Shame

The BVerfG stated that moral judgments, which are based on good and evil, lead to the sense of binding that appears in the serious distress that we feel when we act contrary to such judgments. What is it about this distress? Can we describe it more in detail? Yes, we can. The original kind of serious moral distress is the feeling of shame. The feeling of shame was already a touched upon in the sixth lesson when we were considering whether it is possible for a person to be aware of her own personhood and at the same time deny the personhood of others. We said that it is possible, but nevertheless causes the feeling of moral shame which is a very serious kind of suffering. I think it makes sense to analyze the feeling of shame again and in more detail. This is necessary in order to adequately understand the function and relevance of the freedom of conscience. You will see that I do some repetitions, but I will also add some new aspects which can make things more clear. Shame occurs not only as a reaction to moral failure. It can also occur in situations that have nothing to do with morality. In general, we can say that shame occurs if we feel rejected by others because they are aware of a serious deficiency that we have. So, shame is the reaction of a ­certain attitude of others toward ourselves. This is the attitude of rejection. We feel shame in front of others who reject us. I set aside the very problematic case of

223 12.2 · The Mechanism of Conscience

shame that is not based on a real rejection by others, but only on our wrongly perceived belief of being rejected by others. Shame can be based on an error but it can also be based on a realistic assessment of the situation. For our purpose, it is sufficient to only address the cases of “realistic shame.” It is important to understand that the rejection by others alone is not sufficient for shame. Shame occurs only if a second element takes place. This second element is constitutive. Others who qualify us as having deficiencies use a certain standard of qualification according to which they can judge whether we have deficiencies. Shame occurs only if we share these very standards. The rejection by others lead only to feelings of shame if the awareness of being rejected reminds us that we reject ourselves because we share the opinion that we have important deficiencies. I will give you some examples. We feel shame if someone else rejects us because of our hair color or our body shape and if we share the opinion that our hair color or our body shape is deficient or otherwise not what it should be. If we feel rejected by others because they are not satisfied about the work that we have done, we feel shame if we share the opinion that we failed to do our work correctly. If we feel rejected by someone with whom we felt love, than we feel shame if we share the opinion that we really are not worth being loved. Considering that shame occurs only when we share the standard of qualification according to which we show deficiencies, it is possible to feel shame although there is nobody outside of ourselves who rejects us. We can feel shame simply because we reject ourselves. What is true for all kinds of non-moral shame is also true for moral shame. We do not feel moral shame only because we are blamed by others for acting contrary to moral standards. We feel moral shame only if we act contrary to the moral standards that we share with others. The standards of morality can cause moral shame only if they are integrated in our conscience. Conscience is (1) the knowledge of the standards of morality and (2) the conviction to be bound by them. Freedom of conscience thus refers to the freedom not to be coerced into acting contrary to the moral rules that the respective person considers binding for herself. Now we can ask why it is important to protect the freedom of conscience by a special human right.

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Avoiding Shame

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Displacement

All kinds of shame undermine our self-esteem. So, we feel a strong drive to avoid shame. A sufficient way of avoiding shame is to escape from situations that cause shame. Someone who feels shame because of his hair color can colorize his hair. Someone who feels shame because of her body shape can either try to lose weight or do body building or participate in sports, or she can avoid meeting people and try to remain at home. Someone who feels shame because he has failed in his profession can change his job in order to become more successful and earn more appreciation. Someone who feels rejected as a lover can avoid encounters with girls or women. In this case, he will suffer from loneliness but not from shame anymore. But moral shame is different because moral rules do not relate to the standards of being a good worker, a good lover, a good sportsman, a good musician, or politician or whatever. They relate rather to the standards of being a good human. Someone who does not act in accordance with moral rules shows deficiencies in being a good human being. Now we can see why moral shame is much more serious than other kinds of shame. The difference is the possibility of escape. Someone who feels shame because he is a bad musician or a bad lover can avoid the shame by ceasing to be a lover or a musician. One can escape from the role of a lover or from the role of a musician by choosing another role. Regardless of this change, he may continue to live without the feeling of shame. But what should we do if we want to avoid moral shame? We have to cease being a human being. The only way to do so is committing suicide. You see here why moral shame is much more dramatic and much more serious as compared to any other kind of shame. But this is only one side of the coin. Most people who feel shame because of moral deficiencies do not commit suicide. Their drive to life is so strong that they search for strategies, which allow them to avoid the pain of shame and nevertheless survive. One of these strategies is – as we have seen in the sixth lesson – the strategy of displacement. In this case, we are making great efforts to forget our moral deficiencies. But this is not as easy as it seems to be. It is hardly possible to simply forget moral deficiencies because they affect our self-esteem in a very essential way. Therefore, displacement is mostly a kind of replacement. We replace the awareness of our failure by the invention of something else that is easier to tolerate. We can, for example, invent

225 12.2 · The Mechanism of Conscience

the idea that we are not the subjects who were responsible for an evil act but rather somebody else. This was what the German people did after World War II. They replaced the moral shame of their horrible crimes during the Nazi-­ controlled time with the idea that all these crimes were committed only by one perpetrator, namely Adolf Hitler. They considered themselves not just as mere cogwheels in the hand of Hitler, but also as manipulated victims of his crimes. The real victims of their crimes were not recognized as victims but rather they considered themselves victims. This made it easier for them to continue living without feeling moral shame. Very often, it is not enough to simply replace the recollection or memory. It is also necessary to replace the attending feelings. So, the feeling of shame is replaced by a feeling of anger, rage, or disgust. These feelings, however, need to be addressed. And because they avoid addressing their own evil actions, the feelings are then projected to somebody else. This could be the members of one’s own family. In this case, the person concerned avoids the pain of shame by treating others painfully. Although he no longer suffers himself, he allows or causes others to suffer. Another strategy is, for example, projecting these feelings to Jews, colored people, or aliens. Still another possibility is to project the feelings of anger or disgust to oneself, but not to oneself as the person who committed evil actions, but rather to some aspects of one’s personality that seem less than essential. This could be the body. In this case, the respective person has feelings of disgust or shame toward his own body instead of experiencing moral shame. One reaction of such feelings could, for example, be a certain obsessive washing or an obsessive and pedantic sense of order. In this case, the suffering remains with the respective person, but it is reduced to a level that does not affect the self-esteem of the person as a whole. The consequence of this strategy is always a substantial reduction in the possibility of leading one’s own life on the basis of rational considerations and reflections. The psychoanalyst calls such strategies of displacement by replacement as neuroses. The disadvantage of neuroses is that the suffering cannot be brought to an end. It continues forever. The only difference is that the neurotic kind of suffering seems to be less essential for the person and is easier to tolerate than the original moral shame. The price, however, is high. It is to pay in the currency of self-alienation.

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Feeling of Guilt

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As you might remember from the sixth lesson, there is still another strategy. This is neither the surrender to moral shame by suicide nor the mere avoidance of moral shame by displacement and neuroses. It is, rather, the strategy of keep one’s head above water by the transformation of moral shame in a moral feeling of guilt. This transformation is the best and most sane strategy of handling with moral self-rejection. It allows to survive and at the same time to maintain the person’s own authenticity. Nevertheless, the opportunity to develop the feeling of moral guilt in order to avoid suicide or the loss of authenticity is cut off if the respective person is coerced to commit actions that conflict with her own conscience and which are therefore considered by her as evil. In this case, the person feels moral shame without being able to transform it into guilt. After all, it is not possible to regret something and to strive for proving worthy of forgiveness as long as one is currently committing the evil action in question. The coercion to act contrary to one’s own conscience forces the respective person either to commit suicide or to avoid the feeling of shame by displacement, thus producing neuroses. Concerning the first alternative, the coercion to act contrary to conscience appears as a strong disregard of the person’s existence. Concerning the second alternative, the coercion leads to a deep self-alienation. This is why we should understand that there is an urgent need for a right not to be coerced to act contrary to one’s own conscience. This is the meaning and function of the right to freedom of conscience. 12.3  Is the Right to Freedom of Conscience

a Human Right?

Nevertheless, we must ask whether this right is really a human right. We have said that we can consider a right a human right only if the function of that right is to protect the necessary conditions of developing and maintaining personhood. I think we cannot say that someone who commits actions contrary to their own conscience is undermining their personhood. Indeed, the opposite is true. Only if we are persons and as long as we are persons are we able of acting contrary to our own conscience. Acting contrary to the conscience is an action for which the agent is responsible. Responsibility, however, can only be ascribed to a person and not to a non-person. In other

227 12.3 · Is the Right to Freedom of Conscience a Human Right?

words, if we would lose personhood by committing evil actions against our conscience there would never be someone who could be responsible for what he does or for what he has done. Conscience is an element of personhood and without personhood it is not possible to act contrary to conscience. Without personhood, it is not possible to feel moral shame. So, the problem of conscience and shame disappears when personhood ceases to exist. This shows that there is no direct connection between the freedom of conscience and the conditions of personhood. Personhood is rather the precondition of a conflict of conscience. The protection scope of the freedom of conscience must be considered in another way. The object of protection is not personhood but personality. What is the difference? Personhood refers to the entirety of the skills that are Personality required for developing and maintaining a personality. Personality is the result of the application of personhood. By making use of our personhood we produce a personality. Personality can be modified or replaced by another personality and the story of our biography consists of the development, modification, and replacement of personality. Personality refers, so to say, to the script of play that we perform during our lifetime. It is obvious that the play which we perform when we are young is different from the play that we perform when we are retired. The life style of young people and old people is different because their personalities are different. Nevertheless, there is in most cases a slow development from the personality of the young person to the personality of the older one. In other cases, the change of personality appears rather as a revolution. An impressive example concerns those people who had to face deep mortal agony while they were involved in a disaster. While they previously may have developed a personality that was characterized by frivolity and superficiality, her personality has changed abruptly after the disaster. They are now serious and careful, and they consider what really matters in life. Another example is the criminological re-­ socialization thesis according to which the prison has the function of supporting the inmates in changing their personality from a criminal one to a civic one. The freedom to develop a personality according to one’s own choice is not protected by human rights. This is easy to understand when we consider the option of a developing criminal personality. It is obviously legitimate to oppress this option and the law does nothing else. Law prohibits

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1

ity

nal

so Per

2 nality

Scope of Freedom

Perso Personhood

Personality 3 Perso n

ality

Per s

4 Prohibited by law

on

alit

y5

..      Fig. 12.4  Lawful and unlawful personalities

some types of personality. The scope of alternative options for the development of personality is therefore restricted and can be restricted to a certain extent (see . Fig. 12.4). Nevertheless, the extent of possible restrictions must be limited. Otherwise, a violation of human rights occurs. We can understand this through an example. We can compare the abilities of personhood with the ability to walk. The ability to walk will be stunted and will result in the inability to walk when a person is prevented from moving freely. A similar thing happens when a person is prevented from freely developing a personality. The ability of personhood becomes stunted, unless there is some space within which a free design of the personality is possible. So, the scope of free development of personality does not have to be unlimited, but the extent of the scope must be sufficient in order to maintain personhood. It must be wide enough in order to have a real choice and to develop a personality with which the person can identify herself, so that she can say: “This is what I have made of myself! This is me!” The personality is the result of all actions that we committed prior to the current moment. Identity, which refers to the personality, is called the biographical or, according to a concept of Paul Ricœur, the narrative identity. What happens with the biographical identity when a person considers important actions in her lifetime as evil? In this case, the person also considers her personality as evil. Considering one’s own personality as evil leads either to striving to change the personality or the attitude of selfnegation (see . Fig. 12.5). In order to avoid self-negation,  

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Biographical Identity

 

229 12.3 · Is the Right to Freedom of Conscience a Human Right?

Free action

Regret/guilt/change of attitute

Forced action

No Regret/guilt/change of attitute

Good personality

Biogr. Identity. positive

Good personality

Option 1: good actions

Option 2: evil actions

/ suicide / displacement / self negation

Biogr. Identity. negative

Evil personality

..      Fig. 12.5  Forced evil actions

the person has to regret her evil actions and re-establish a good personality. Where someone is coerced to act contrary to one’s own conscience, he cannot choose the first option. He cannot regret. He is forced to self-negation. The script of a personality that is based on self-negation, includes the quest for self-destruction. Suicidal tendencies or at least ­displacement is a constitutional element of a personality that is self-negated. This shows that the coercion to commit actions contrary to one’s own conscience is not on the same level as any other restriction to the freedom to develop a personality. It affects not only the freedom to choose a personality, but also the freedom to develop and maintain personhood. Therefore, we come to the conclusion that the right to freedom of conscience is really a human right. As we are at the end of this lesson, I want to stress an important fact. The reasons for a right to the freedom of conscience show that this right does not empower the holder to intervene in the actions of other fellow humans, regardless of whether these actions are considered evil by the respective person. The right to freedom of conscience does not entitle to a moral ruling over others. It guarantees only moral sovereignty toward oneself. From this follows that the right to freedom of conscience only entitles a person to refuse cooperation. Nobody may be coerced to actively cooperate if the cooperation demands committing actions which are contrary to her conscience. This is the only content of the right to freedom of conscience. But nobody who is driven by his conscience to fight for a better world is entitled to disturb or to sabotage the actions of others.

Moral Sovereignty

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??Do you still remember? 12.1 In which context appeared the legal concept of “conscience” for the first time? 12.2 Explain the definition of conscience. 12.3 What is the core function of the right to freedom of conscience? 12.4 Why can the right to freedom of conscience be considered a human right?

For the answers, see 7 Chap. 21.  

Reading Recommendations Locke, John: Essay concerning human understanding. 1690, Essay I, Chapter II, § 8 Strohm, Paul: Conscience. A Very Short Introduction. Oxford 2011 Tiedemann, Paul: Identity and Human Rights. Considerations on a Human Right to Identity. In P.  Tiedemann (ed.) The Right to Identity. ARSP-Beiheft 147 Stuttgart 2016 Tiedemann, Paul: Is There a Human Right to Freedom of Religion? In Human Rights Review 16 (2015), pp 83–98, https://doi.org/10.1007/ s12142-­014-0342-2

Case Law BVerfG jud. of 20/12/1960 – 1 BvL 21/60 –, BVerfGE 12, 45 (definition of conscience) ECtHR, jud. of 15/01/2013 – 48420/10 et al – “Eweida and Others v. UK”, § 80 HUDOC

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The Right to Spiritual Freedom Contents 13.1

The Generality of Freedom of Religion – 233

13.2

The Freedom to Believe or Not Believe – 234

13.3

The Freedom to Practice Religion – 236

13.4

 eligious Practices and the Maintenance of R Personhood – 238

13.5

The Criticism of Case Law – 247

13.6

The Timeliness of Religious Freedom – 251 Reading Recommendations – 251

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_13

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The Redundancy of the Right to Freedom of Religion Insofar as freedom of religion refers to either the right to believe or not believe or the right to assemble on religious reasons or establish and operate a religious association, it is redundant because the communication rights already cover these rights. Insofar as the freedom of religion refers to the right to deny cooperation in accordance to one’s conscience, it is redundant because the right to freedom of conscience already covers this right. Only the core of spirituality (worship, rituals) can be considered as the possible subject matter of a specific right to freedom of religion. Spirituality, however, can be considered the protection scope of a human right only if spirituality is a required condition for the maintenance of personhood and the avoidance of selfalienation.

Religious Dualism

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In principle, we can experience the world in two different ways: (1) as a profane world which can be subjected to technical or communicative control, or (2) as a sacral world that cannot be subjected to any kind of control. The confrontation with the world as a whole (“the sacral”) occurs when we experience senseless and uncontrollably overwhelming suffering or injustice or when we become aware of our own death. The confrontation with the sacral world overwhelms us completely and makes us unable to lead an authentically self-determinated life. Religious people are aware of both worldviews while people who are “religiously unmusical” (Max Weber) are only aware of the profane worldview. They do not have (yet) to any experience with the sacral worldview. They believe that in principle everything is controllable. There is some evidence for the guess that avoiding the sacral worldview leads to particular substitutes which indicate a kind of self-alienation (e.g., consumism, political extremism, particular obsessions for career, money, sports, etc., or a particular infantilism like fan cults).

233 13.1 · 13.1  The Generality of Freedom of Religion

Definition of a Rational Concept of Religion (Spirituality) Religion is the entirety of all the techniques that, in the face of the sacral world, allow us to reestablish or maintain the capacity to authentic self-determination and thus avoid self-alienation. These techniques refer to the assimilation of the individual to the almighty power of the world instead of the accommodation of the world to our purposes and interests. Religion, in this meaning, should be called spirituality. Spirituality is to be distinguished from a concept of religion that refers to techniques that allow us to control the world by means of magic. Religion in this meaning seeks to get power and control while spirituality renounce on power and control because it considers such seeking as senseless.

The Function of the Right to Freedom of Spirituality The core function of the right to freedom of spirituality is the defense of the freedom of will against self-alienation by protecting the access to the religious means of resilience. These means of resilience makes people able to cope with threats of overwhelming power of the world as a whole. Spirituality does not modify the world. It only modifies the respective person.

13.1  The Generality of Freedom of Religion

The former President of the German Federal Constitutional Court and later Federal President of the Federal Republic of Germany Roman Herzog noted in his commentary on the Basic Law that:

»» If any basic right [of the Basic Law] ever is a direct con-

sequence of the principle of human dignity as it is declared as untouchable in Article 1 (1) and if any right ever is an inalienable and inviolable human right to whom Article 1 (2) refers to, then it is Article 4, which refers to the freedom of religion.

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The Religion of the Others

Christendom/Islam

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In making this comment, Herzog wanted to say that in no other case is it so evident that a particular right should be considered a human right as is the case with the right to freedom of religion. I do not agree with him. It seems to me much more evident that the ban of torture or the freedom of expression are human rights. I concede, however, that a person who is very religious will consider her religion and the freedom to the exercise her religion to be the most important matter of her life. A religious person might even be ready to sacrifice her life for the sake of her religion. Nevertheless, this does not show that the right to the freedom of religion is really a human right. A human right to freedom of religion demands – insofar as it should exist – respect toward the religious life of every human person. So, it is not about my religion, it is about the religion of others. Freedom of religion demands respect toward foreign or even strange religions. In other words, it demands respect for religions which are not my own. We thus reach a serious problem when we consider the issue from the standpoint of Christendom or Islam. Both religions consider all other religions as being wrong—that is, they are based on misunderstandings, errors, or lies. Christendom as well as Islam claim that they are the one true religion and that every other religion is an error. From this point of view, it simply makes no sense to protect the belief in and the practice of religions that are based on wrong ideas. It is inconceivable that errors are constitutive of the development and maintenance of personhood. This problem is still more dramatic when we think about atheists. Atheists share the opinion that Christendom and Islam as well as every other religion are wrong practices based on wrong ideas. How should it be possible for an atheist to consider the right to the freedom of religion a human right? 13.2  The Freedom to Believe or Not Believe

Communication Rights

You may probably recall that the protection scope of the rights to free thoughts and expressions embrace not only the right to think and express true ideas, but also the right to think and express wrong ideas. You are right. If we understand religion as consisting of a certain amount of ideas and nothing else, and if we consider freedom of religion as the freedom to believe or

235 13.2 · The Freedom to Believe or Not Believe

not believe in these ideas, then it is not relevant whether these ideas are true or wrong. The thinking and the expression of wrong ideas is protected by human rights. Nevertheless, for the purpose of the protection of the free exchange of religious ideas we do not need a special human right whose protection scope can be distinguished from the protection scope of the communication rights. The communication rights embrace all sorts of ideas, including religious ideas. The freedom to exchange religious ideas is therefore covered by these rights. The communication rights guarantee the right to believe or not believe, the right to express one’s beliefs, the right to assemble with other believers, and the right to establish associations of believers (churches). So, the question arises, why should there be a special right to the freedom of religion aside from the ordinary communication rights. The fact that the human rights codifications contain a special human right for freedom of religion in addition to the communication rights is a product of history. A long time before the communication rights became a subject of human rights, the need for religious freedom of thought had already developed in Europe. This was a result of the religious wars of the 16th and 17th centuries, which brought untold suffering to the peoples of Europe and have taught them never again to run wars for religious reasons. In order to avoid such wars, it was necessary to tolerate the strange religious ideas of others. Furthermore, many of those who were persecuted because of their religion fled across the Atlantic and established the United States of America. In the United States, the right to the freedom of religion has thus always played a very prominent role. The need for the freedom of communication that relates not only to religious, but to all kinds of ideas, was only discovered in the course of the European Enlightenment. This development began in the 17th century, but led to the demand for appropriate human rights only toward the end of the 18th century within the context of the American and French revolutions. At that time, the right to freedom of religion within the meaning of a right that protects religious thinking was already well established such that it became common practice to assign the protection of religious ideas to the right to freedom of religion and the protection of all other ideas, especially of political ideas, to the communication rights. But a serious analysis shows that the freedom to believe in or to express

Historical Reasons

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religious ideas is only part of the general freedom to believe in or to express all kinds of ideas. Therefore, from a systemic point of view there is no need for a special right to the freedom of religious belief. 13.3  The Freedom to Practice Religion

Morality

13

The communication rights including the right to religious belief refer only to the exchange of ideas. They apply to a pure intellectual world and not to the world of crude facts or situations beyond the world of ideas. The communication rights allow us to talk about everything. But they do not allow us to act in accordance with our ideas and to realize what we are thinking. We can have the idea that the world would be better and more just place if we did not have to pay taxes. Regardless of whether this idea is right or wrong, this does not alter the fact that we have to do what the tax laws require. At least we cannot claim that the duty to pay taxes violates communication rights. For paying taxes is an act in the material world and beyond the world of pure ideas. So, we can take the right to freedom of religion seriously only if this right does not only refer to the intellectual freedom but also to the freedom of a specific kind of action, namely actions that can be considered as religious actions. Especially from the viewpoint of those religions which are well established in Europe, we can determine that actions that are based on a certain moral motivation fall within the scope of religious actions. In Europe dominates Christendom, Islam, and Judaism. The latter is a minority religion, but its influence on religious thinking goes far beyond the community of the Jewish people. Jewish thinking influenced Christendom so strongly that it makes sense to speak about Christendom as a Jewish sect. Islam was also strongly influenced by both Judaism and Christendom. An important characteristic of Judaism is the idea that the exercise of religion primarily consists of the obedience to God. Obedience to God requires following rules, which are issued by God and refer, at least, to the relationship between the members of the community or more generally to the relationship between all members of mankind. These rules should therefore not be followed on the ground that they are useful for the acting person,

237 13.3 · The Freedom to Practice Religion

but rather only because God has commanded them, regardless of whether they are useful. The believer fails to fulfill the meaning of his life if he disregards the commandments of God. Failure to comply with the Godgiven rules of living together is called a “sin.” The general term for the type of rules which are to be complied with regardless of the practical consequences for the agent and only in order to avoid the failure of the meaning of life, is the term morality. Rules of this type – regardless of whether they are considered as given by God  – are called moral rules. Moral rules are not the constituent element of every religion. They are typical only for Judaism, Christendom, and Islam. For other religions – like Hinduism, Buddhism, or all those religions that do not belong to the so-called “high forms” of religion  – moral rules are based on ­tradition or on the teaching of wise men, but they are not considered as God-given. It is now important to understand that the right to freedom of moral acting – regardless of whether it is based on religion – is covered by another wider-framed human right, namely the right to freedom of conscience. The separation of this right from the right to freedom of religion is, as we have seen in the last lesson, only a recent development. It occurred only in the time after World War II and it has not been recognized everywhere in the world of legal or philosophical thinking about human rights until very recently. In particular, in the English speaking world it is common to identify conscience with religion. An example for this is the title of a famous book of Martha Nussbaum: Liberty of Conscience. In Defense of America’s Tradition of Religious Equality (New York 2008). Another example is Jocelyn Maclure and Charles Taylor’s Laïcité et liberté de conscience (Montreal 2010). The latter holds the opinion that freedom of religion is a sub-category of the freedom of conscience. This seems me to be a consequence of the fact that the protestant variation of Christendom is predominant in those countries and that moral rules as constituent elements of religion is a particular characteristic of protestant variants of Christendom. A closer analysis shows, however, that freedom of conscience is much wider framed than the freedom to religiously motivated moral acting. This follows from the fact that morality cannot only be justified on the basis of religious belief. Other sources of morality are also possible. So, we can conclude the following: freedom of religion, as long as it refers to the freedom

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Rites of Worship

13

of moral acting, is embraced from the wider framed freedom of conscience. So, there is no need to establish a specific right to religion in order to guarantee protection of the freedom of religiously motivated moral acting. But there is another kind of action that is very closely related to every religion. All religions embody certain practices, which can be called ritual practice. Rites are not only typical for some sorts of religion. They are rather constituent for the concept of religion as such. Religion without rites is not conceivable. What are rites? Religious rites refer to worship, ritual sacrifices, adoration, prayers, singing, pilgrimage, fasting because of religious reasons, meditation, and contemplation. We will see later that certain kinds of behavior directed at other people (charity) can also be considered as ritual actions. If there is such a thing as a specific protection scope of a right to freedom of religion, then it must refer to the freedom to commit ritual actions. As we have worked out so far, human rights are, by definition, rights that are dedicated to the aim of protecting the essential conditions of becoming and being a person, the conditions of personhood. From this follows that the right to freedom of religion can be considered a human right only if the carrying out of religious rites can be considered an essential condition of the development and maintenance of personhood. Otherwise, such a right cannot be derived from the principle of human dignity and would therefore be only a simple positive right and not a human right. 13.4  Religious Practices and the Maintenance

of Personhood

In the following, I will show that there is indeed an essential need for the freedom of religious ritual action in order to maintain personhood. For that reason we have to clarify the function of religious rites. Rites appear not only in the context of religion. Every exam celebration is a rite, an academic rite that happens at the end of every semester. In order to find out the specific characteristics of religious rites, I first want to inquire into the function of religion. I hold the opinion that the function of religion becomes clear when we draw attention to a fact that is typical for religious people.

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13

..      Fig. 13.1  Profane places: Skyline of Frankfurt

..      Fig. 13.2  Sacral places: Pyramids of Giza

Religious people cherish a dual worldview. They distinguish the profane world from what I want to call the sacral world. Many religions materialize this distinction by distinguishing between profane and sacral places, houses, mountains, woods, or waters (see . Figs. 13.1 and 13.2). This is a very archaic manner of thinking about religion, but it also appears in current religious life. Does this topographic distinction between profane and non-profane give us a hint about the relevance of religion in the maintenance of personhood? At first glance, this is difficult to see. The so-called monotheistic religions (Judaism, Christendom, and Islam) also refer to the distinction between  

Dualistic Worldview

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profane and non-profane (sacral). But they do not consider this distinction as a difference in space and time. Rather, they refer to the distinction between a material world inside the space-time continuum and a world beyond the world in time and space (the Hereafter). In other words, monotheism differentiates between a profane, immanent world and a non-profane, transcendental world. This idea, which is characterized through a doubling of the world, is very often connected to a ban of sacral images because sacral images tend towards an archaic worldview. The dualism of immanence and transcendence is without doubt intellectually much more challenging. Nevertheless, even this idea does not demonstrate why religion should be an essential condition of the maintenance of personhood. But before we give up all further attempts to think about the relevance of religion, we should first ask whether there is a common basis in these two perspectives that may lead us to a deeper insight. The search for a common basis in the two variations of religious dualism shows that both interpret the dualism of profane and non-profane in an ontological manner. Ontology is a philosophical term. It is the name of the philosophical discipline which wants to determine the general structure of what exists in the world. In other words, the discipline concerns itself with the general structure of being as such. Ontological research is always developed into terms of an observer looking out to the world and its general structure. It is the view on an external object. Here is the observer and there is the observed world. The opposite of an ontological approach is what we can call the perceptive approach. The perceptive approach is a look on an internal object. The perceptive approach does not ask what exists and what its general structure is. It asks instead what do I perceive and what is the general structure of my perception. This internal view is a view that reflects what happens inside of the perceiving person. The internally directed reflection is the alternative to the externally directed ontological view. So, before we give up the attempt to determine the relevance of religious dualism for the maintenance of personhood, we should first investigate whether this relevance becomes clear from the position of a perceptive approach. According to this approach, the religious dualism refers not to two different kinds of being, but to two different kinds of perceptions. A good way to understand the religious distinction between profane and non-profane is through a picture, first published anonymously on a German postcard from

241 13.4 · Religious Practices and the Maintenance of Personhood

..      Fig. 13.3  “My Wife and my Mother-in-Law”. (© Public Domain (anonymous German postcard of 1888))

1888. It is well known under the title “My Wife and my Mother-in-Law” (see . Fig.  13.3). This picture shows a woman. Some of you will identify a young woman who turns her gaze away from the viewer (“wife”). Others will see an elder woman with a hooked nose who turns her gaze to the lower left edge of the picture. (“mother-in-­law”). If you concentrate on the image, you will likely see both women. Nevertheless, you will recognize that the image will tilt over and you does not see the young woman anymore but the elder one; respectively you see the young woman while you don’t see the elder one anymore. Just as you can see two different images despite there being ontologically only one image, so too it is possible to  

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Profane Worldview

13 Sacral Worldview

see the world in two different ways. Depending on the particular worldview which we choose, we are aware of different worlds although there is ontologically only one world to be seen. We can thus distinguish the profane and the sacral worldview. Let me shortly describe the profane worldview. The profane view of the world is analytical. We never see the whole, but only parts and relations between these parts. A fundamental analytical distinction is the distinction between me and the world around me. By distinguishing between me and the world around me, I understand myself as opposite to the world and not as part of the world. I understand myself as a being with a dynamic that is independent from the dynamic of the world around me. Another important analytic distinction is the distinction between environment and social world. Environment is the world insofar as every individual person always stands in the center of that world. For me, my environment is only interesting to the extent that it relates to my needs, interests, advantages, risks, etc. The social world consists of all the other individuals around me who I recognize as fellow humans. We recognize our fellow humans as their own centers of their own environment, as means in themselves, as someone and not just as something. Both the environment and the social world are primarily controllable by us and disposable for us. We can talk to our fellow humans in order to find out their intentions, purposes, and desires. We can make arrangements with them in order to calculate their future behavior and we can try to influence their future behavior by means of communication. The environment is technically controllable, predictable, and calculable by mindful experience or by scientific methods. Now let us turn to the non-profane way to see the world. I call this worldview the sacral one. The sacral view of the world is not analytical but holistic. By this view, we are aware of the world as a whole and not as a system of parts. By exposing ourselves to the world as a whole, we lose the capacity to understand it as well as the capacity to control it and to dispose of it because understanding, controlling, and disposing are possible only with regard to particular parts and aspects of the world and not toward the world as a whole. The holistic view of the world is the original one. It is the view of the new born baby who is still not able to distinguish between himself and the world. As adults, we lose

243 13.4 · Religious Practices and the Maintenance of Personhood

the capacity to distinguish between ourselves and the world if we watch the world through holistic glasses. We watch the world through holistic glasses if we experience senseless suffering, senseless injustice, or if we simply are aware of our own death. In such cases, we stop feeling as though we are opposite to the world. Instead, we feel ourselves to be part of the world, as something rather than someone. If we watch the world through the holistic glasses, we lose the capacity to understand ourselves as the center of an environment. We also lose the capacity to understand ourselves as members of a social world because we lose every capacity to establish or to maintain any structure of sense and meaning. By recognizing the world as a whole, we experience a total loss of control. We meet with the world as a power that totally overwhelms us and forces us into a completely passive role. We cannot understand the world as a whole; we cannot maintain our self in front of the totality of the world; we cannot see any sense in world and life. We cannot rule the world anymore. By meeting with the world as a whole, we are deprived of every option to act. The American philosopher William James spoke about the experience of the “floods and waterspouts of God” that makes us into helpless victims. Let us summarize the results of our considerations. In principle, we can experience the world in two different ways: (1) as a profane world which can be subjected to technical or communicative control, and (2) as a sacral world over which we have no control. Confrontation with the sacral world overwhelms us completely and makes us unable to lead an authentically self-determinated life. Nevertheless, what has all this to do with religion? Religion is the epitome of all the techniques that, in the face of the sacral world, allow us to reestablish or maintain the capacity to authentic self-determination. There are significant parallels between the experience of the sacral world and the experience of a psycho-trauma. Human beings suffer from psycho-traumata if they experience overwhelming violence (war, rape, torture) or if they experience overwhelming natural power (earthquakes, floods, being trapped under avalanches or in a mine) or if they suffer by completely wasting away in a hospital or in a prison. In all these cases, the victim experiences a fundamental deprivation of control. The discovery of psycho-trauma diseases which make people unable to lead a self-determinated life is relatively new knowledge. It occurred in the second half of the 20th

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Function of Religion

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century. It is also relatively new knowledge that people who suffer from psycho- traumatic experience are only able to heal themselves and reestablish their capacity to act authentically by their own powers (resilience) under certain conditions. Finally, medical and psychological methods have now been developed to help people who are not able to heal themselves. Interestingly, it has been shown that there are striking similarities between the conditions and possibilities of healing the psychological trauma and the traditional means of religion. So, the findings of modern psycho-traumatology allow for a better understanding of the function of religion. From these considerations follows a very important insight. Religious practices do not pursue the aim of changing, ruling, or controlling the world. In front of the total almightiness of the sacral, there is no opportunity to change or control anything. The conception of a “political religion” is a contradiction in itself. Likewise, all forms of magic, although very often confused with religion, have nothing to do with it. Magic is a (mostly less successful) means of controlling the world. It belongs to the profane world and not to the sacral one. Religious practices do not aim to change or improve the world, but they pursue only the aim to change oneself in order to assimilate to the “floods and waterspouts of God.” A very intuitive image for this is that of bamboo, which a storm cannot break because it is flexible enough to bend with the wind (see . Fig. 13.4). The target of religious practices is to become flexible and porous and to not resist against the sacral in order to avoid destruction.  

13

Therefore the stiff and unbending is the disciple of death. The gentle and yielding is the disciple of life. Thus an army without flexibility never wins a battle. A tree that is unbending is easily broken. The hard and strong will fall. The soft and weak will overcome. ..      Fig. 13.4  LAO-TSE, Tao-Tê-King 76, 181

245 13.4 · Religious Practices and the Maintenance of Personhood

I will present only two examples of religious practices. Many religions are familiar with rituals of sacrifice. The purpose of sacrifice is to give away belongings in order to become independent of these belongings, so that you cannot be destroyed if the sacral takes it from you. It is a strategy of immunization and becoming resistant against the storms and waterspouts of God. The other example is charity. Some religions stress charity. Nevertheless, behind charity stands the same idea as sacrifices. By turning oneself to somebody else in love, we take ourselves as not being so important anymore. We reduce, so to say, the stiffness and hardness of ourselves. We are not so busy anymore with defending ourselves. Rather, by having the needs of others in mind we become softer and more tender. By doing so, we earn more flexibility, similar to bamboo in a storm. We can clarify the difference between profane acting and religious acting by using the terms accommodation and assimilation. By acting in the profane world, we try to accommodate the world to our purposes, interests, and needs. We change the world. By acting in the sacral world, we assimilate ourselves to the overwhelming power of the sacral. We change ourselves. Religious practice is therefore the opposite of exercising power. The exercise of power serves the purpose of becoming stronger, more stable, in order to withstand the world and to rule it. Power is only meaningful if we act in front of the profane world, not if we act in front of the sacral world. In front of the sacral world, the aim is not power but acceptance of our own powerlessness. Religious practices aim to maintain authentic self-determination by conscious renunciation of power and control and assimilating oneself to the almightiness of the sacred by becoming porous for the “floods and watersprouts of God.” In order to make that clear, it seems me to be more useful to rename the concept of freedom of religion as freedom of spirituality. The aim of all practices which deserve to be called spiritual shows the relevance of religion in the context of human rights. Religious (= spiritual) rites are necessary means of maintenance of authentic self-determination in the confrontation with the sacral world. From this point of view, we have a sufficient standard to judge whether religious rites are true or false. It depends on their usefulness in coping with the sacral world. Usefulness and not truth is the rational standard of religion. The rituals of different religions might be different and some of them

Sacrifices Charity

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appear to us strange, but we can nevertheless consider them as a subject of protection through human rights if they are useful to those who practice them. Neither the state nor other people can judge which rites someone may choose and practice as long as they are useful to him and not harmful. Just as the state does not have the power to decide which scientific theories are true and which are false, it does not have the power to decide which religious practices are helpful and useful to maintain the authentic self and which are not. From the states point of view, we can only say that both the sciences as well as the religions are necessary in order to lead a life with human dignity. Therefore, the state must protect both by recognizing a human right to free thoughts and free science as well as a human right to freedom of religion. The aim of spirituality and the function of the right to freedom of spirituality shows that this right has something to do with the prevention of ownership in one’s own person. This is why this right can be assigned to the group of privacy rights. Many people might question whether religious rites are actually necessary to maintain personhood in traumatic situations. Indeed, there are individuals who do well without practicing religious rites. They do not need religious means of resilience even in traumatic life situations. Nevertheless, we should distinguish between those who are really “religiously unmusical” (Max Weber, Jürgen Habermas) and those who have no access to religious means because of a lack of religious education. The latter very often tend toward strange substitutes which indicate a kind of self-alienation. Instead of religious rites, they exercise other rites which are obviously not sufficient. They do not share a religious belief, but they observe the ideals of consumism, political extremism, particular obsessions (e.g., career, money, sport, etc.), or they share a particular infantilism like fan-cults. But even if we think about those who are neither depend on religious practices nor irrational substitutes that does not preclude the adoption of a human right of religious freedom. There are also people who are not interested in expressing an opinion and do well without reading a newspaper. Nevertheless, there is a human right to freedom of expression and a right to freedom of information. There are people who do not want to go to meetings and do not want to belong to an association. Nevertheless,

247 13.5 · The Criticism of Case Law

there is the right to freedom of assembly and association. Yes, there are even people who do not want to live anymore. Nevertheless, there is a human right to life. So, why should there not be a human right to spirituality despite some people not making use of it? Furthermore, the right to freedom of religion includes not only the right to make use of religious means, but also the negative right to not be coerced into religious rites. 13.5  The Criticism of Case Law

With the end of this lesson, I want to apply the results to the example of the case law of the German Federal Constitutional Court concerning the Muslim headscarf. In its first judgment on this matter from 2003, the Court decided that it was a violation of the right to freedom of religion when a candidature for a job as a teacher at a public school is refused because the candidate wants to wear a Muslim headscarf. The Court held the opinion that the ban of Muslim headscarves for teachers during school hours is an unlawful restriction of the freedom of religion when there is no statute that allows such intervention in freedom of religion. Subsequently, some German states enacted laws according to which it prohibited teachers in public schools from wearing a Muslim headscarf during school hours. In its decision of 2015, the Court cancelled the statute of the land of North Rhine-Westphalia by arguing that it is not in accordance with the right to freedom of religion to ban the Muslim headscarf simply on reason of abstract and generalized considerations. The ban would only be lawful if there is a sufficient concrete risk for disorder of the peace in school or for the neutrality of the state. Only if a teacher provokes severe trouble in the school by wearing a headscarf can it be justified to prohibit the wearing of the scarf. It depends thus on the extent of tolerance of the school community whether the freedom of religion of the respective Muslim teacher has to be respected. Nevertheless, there cannot be any doubt that the exercise of a human right can never depend on the tolerance or intolerance of others. So, there is only one possibility of interpreting the judgments in accordance with a rational human rights doctrine. The Court obviously does not consider the right to freedom of religion as a human right. The Court seems to think that exercising religion

Muslim Headscarf

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Moral Considerations

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(by wearing a headscarf) has nothing to do with the conditions of personhood or with the principle of human dignity. Freedom of religion falls only in the protection scope of freedom of action and not in the protection scope of freedom of will. Therefore, there is no absolute right to the freedom of religion and instead freedom of religion depends on other interests and can be determined only on a case-to-­case basis according to the principle of proportionality. Are these judgments convincing? The first question we have to ask is whether wearing a Muslim headscarf is a religious ritual that can be considered an appropriate means of assimilating to the floods and waterspouts of God. At the very least, it is not entirely excluded that a pious woman understands the headscarf as a means of spirituality. A headscarf can be a means of spirituality if, like the knot in a handkerchief, it should remind the wearer of the overwhelming power of the sacred, and of the need to be permeable to the floods and waterspouts of God in all situations of her life. I cannot presume to know the motivations behind every woman that wears a headscarf. Nevertheless, it is clear that if a woman says that she wears the headscarf exactly on this reason then it must be accepted as such. Still, wearing a headscarf as a means to remind the wearer of its existence under the power of God, is only protected by the right to freedom of religion if the ban leads to a sustained and deep devaluation of this means. But the function of the headscarf as a spiritual reminder is not really destroyed or devalued when a woman is hindered from wearing it during some hours of the day. Therefore, the freedom of spirituality cannot be seriously threatened if a pious Muslim woman does not wear the headscarf for some hours during her worktime. Even if she wears the headscarf only in her free time, this will be sufficient to support her in maintaining a religious attitude toward her life. But there is probably still another function of the Muslim headscarf. It can serve as a symbol by which the wearer confesses her beliefs, giving others an opportunity to reflect on their own religious positions. In this case, the headscarf is a means of communication. As we have seen in the ninth lesson, communication rights do not provide privileged positions and chances to disseminate one’s own opinions in every setting. This is also true for religious

249 13.5 · The Criticism of Case Law

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1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

..      Fig. 13.5  Article 9 ECHR

opinions. Therefore, a teacher does not have the right to express her religious belief in front of a school class. She has no right to use the headscarf as a means of communication while working as a teacher in a public school. This shows that prohibiting a teacher from wearing a Muslim headscarf during work hours is not a violation of the moral human right to spirituality. So, it can be made a matter of balancing against other interests, just as the Court did. So far to the philosophical, i.e. moral considerations about the Muslim headscarf case. Now I want to show you how the courts can deal with this case in terms of positive law. The Federal Constitutional Court is empowered to decide cases on the basis of the German Basic Law (GG). But first, I want to show the legal argumentation on the basis of Article 9 of the ECHR, which is the basis of decisions of the ECtHR (see . Fig. 13.5). Article 9 (2) ECHR shows that the protection scope of Article 9 (1) concerning the freedom of religion goes beyond what is required by the moral human right of freedom of religion. For only if the protection scope of the codified right goes beyond the scope of the moral human right, does paragraph two make any sense. Otherwise, the protection scope of paragraph one would refer to the core of the human right to religion. As we have seen in previous lessons, restriction clauses are only acceptable if they do not refer to the core of a human right but also to the yard of the right in question. From this consideration, we can conclude that wearing a Muslim headscarf by a teacher during school lessons is covered by the yard of the protection scope of the freedom of religion according to Article 9 (1) ECHR. Therefore, it is permissible to restrict this

Legal Considerations

 

Article 9 ECHR

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(1) Freedom of faith and of conscience, and freedom to profess a religious creed or a non-religious world view, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed. ..      Fig. 13.6  Article 4 GG

Article 4 GG

right according to paragraph two. A basis for a restriction of this right is also found in the principle of ­proportionality that is within the case law of the ECtHR. Thus, it might be justifiable to say that the ban on wearing a Muslim headscarf is not proportionate for teachers in a school or in a kindergarten, while it is perhaps proportionate for policewomen who must appear in uniform. The Federal Constitutional Court did not decide the headscarf case on the basis of the ECHR, but rather on the basis of Article 4 GG (see . Fig. 13.6). Article 4 GG does not have a restriction clause or a statutory reservation clause as other rights in the Basic Law have. Article 4 GG does not allow a restriction by law. From this follows that the protection scope of Article 4 GG must be interpreted differently as compared to the protection scope of Article 9 ECHR, namely much narrower. The protection scope of the codified right here is exactly the same as the protection scope of the moral human right to spirituality. Considering that Article 4 GG protects only the core of the right to religion and because the headscarf case does not fall under the core of that right, we must conclude that this case does not fall under Article 4 GG. The headscarf case does not concern freedom of religion as defined by the Basic Law. The case refers only to Article 2 (1) GG, which protects the freedom of action under proviso of the rights of others and the principle of proportionality. The Federal Constitutional Court has no clear conception of the term religion in Article 4 GG. Therefore, its decisions in this field are not very convincing. As a result of the weak cogency, the case law of the Federal Constitutional Court has some problems finding acceptance in public. A deeper analysis of the concept religion by means of philosophy could improve the Court’s case law.  

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251 Reading Recommendations

13.6  The Timeliness of Religious Freedom

The headscarf case is typical for cases concerning freedom of religion in democratic states under the rule of law. It shows that in decent states of this kind there is almost no serious conflict that actually threatens the right to spirituality. This is easy to understand when we consider that a conflict between spirituality and the public or political interest is hardly conceivable. For spirituality refers only to the renunciation of power and to the assimilation of the individual to the almighty. Spirituality claims no ­domination and no social influence. It refers only to the self-­perfection of the individual person. In free societies, the relevance of religious freedom is dwindling. This shows that cultural development can not only lead to new human rights, but also to the disappearance of old human rights. Nevertheless, the opposite is true in authoritarian societies and states under the rule of dictatorship. In these societies and states, there is a high political claim to the total control of the individual. Spirituality immunizes the individual from such total control. Therefore, totalitarian and authoritarian states fight any kind of individual spirituality, or at least they want to decide for themselves what kind of spirituality they want to allow. It follows that the human right of spiritual freedom in such states is under pressure and the demand for spiritual freedom is of fundamental importance. ??Do you still remember? 13.1 What is the core function of the right to freedom of religion (spirituality)? 13.2 How can “religion” be defined in a rational manner? 13.3 What is meant by religious dualism? 13.4 Which aspects can the right to freedom of religion be considered as redundant?

For the answers, see 7 Chap. 21.  

Reading Recommendations Durkheim, Émile: The Elementary Forms of Religious Life [1912], Oxford 2008 Eliade, Mircea: The Sacred and the Profane. The Nature of Religion. Fort Washington (PA) 1968

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Geertz, Clifford: Religion as a Cultural System. In: C.Geertz, The Interpretation of Cultures. Selected Papers,Plano (TX) 1993, pp.  87. http://nideffer.­net/classes/GCT_RPI_S14/readings/Geertz_ Religion_as_a_Cultural_System_.­pdf Herzog, Roman: Artikel 4 GG. In: Maunz/Dürig/Herzog/Scholz (eds.), Das Grundgesetz. Kommentar. Lfg. 27. München 1988 James, William: Varieties of Religious Experience, a Study in Human Nature. Rockville 2008 Otto, Rudolf: The Idea of the Holy. An Inquiry into the Non-Rational Factor in the Idea of the Divine and Its Relation to the Rational. [1931], London 2012 Schleiermacher, Friedrich: On Religion: Speeches to its Cultured Despisers [1799]. London 2018 Sheldrake, Philip: Spirituality. A Very Short Introduction. Oxford 2012 Tiedemann, Paul: Is There a Human Right to Freedom of Religion? In Human Rights Review 16 (2015), pp 83–98 Tiedemann, Paul: Religionsfreiheit – Menschenrecht oder Toleranzgebot? Was Religion ist und warum sie rechtlichen Schutz verdient. Berlin/ Heidelberg: Springer 2012. https://doi.org/10.1007/978-3-­642-­32709-4

Case Law BVerfG jud. of 24/09/2003 – 2 BvR 1436/02 –, BVerfGE 108, 282 English translation: http://www.­bverfg.­de/e/rs20030924_2bvr143602en.­ html BVerfG dec. of 27/01/2015  – 1 BvR 471/10 and 1 BvR 1181/10 –, BVerfGE English translation: http://www.­bverfg.­de/e/rs20150127_1bvr047110en.­ html ECtHR, jud. of 01/07/2014 – 43835/11 –, S. A. S. v France, HUDOC

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253

The Right to Life Contents 14.1

The Codification of the Right to Life – 255

14.2

The Unique Character of the Right to Life – 257

14.3

The Existence-as-Attribute Thesis – 258

14.4

The Basis Thesis – 260

14.5

The Sanctity of Life Thesis – 262

14.6

The Mortal Fear Thesis – 264

14.7

The Function of the Right to Life – 265 Reading Recommendations – 267

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_14

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The Unique Character of the Right to Life In contrast to any other human right, the right to life seems to be a paradox. It seems to be impossible to violate it. Before the holder of the right is killed, there is no violation of the right because the holder is still alive. After the act of killing, there is no violation of the right because there is nobody whose right could be violated. The holder of the right does not exist anymore and can therefore not be in a state of deprivation of personhood.

No Violation of the Killed Person

14

The thesis that the right to life cannot be understood as a relationship between obligee and obligor is contested by some arguments that are, however, not convincing. The Existence-as-Attribute Thesis is not convincing because the termination of existence is not a kind of deprivation of one’s property. Existence is an ontological transcendental and not an ontological category that serves the classification of entities. The Basis Thesis (life as pre-condition of all human rights) is not convincing because the value of x does not justify the value of the factual situation in which x has a value. Human dignity and human rights are valuable in life but they do not constitute the value of life. The religious Sanctity Thesis (life as the property of God) is not convincing because it can only constitute a divine right to property of human lives, but not a subjective human right to one’s own life. The secular Man-as-Owner Thesis is based on a petitio principii (circular argument) because it derives the ownership of life from the ownership of life. The Deprivation Thesis is not convincing because the frustration of the desire to enjoy further periods of life is negligible. The length of time in which a living being is deprived of positive life experiences after death is infinite. The Mortal Fear Argument fails because persons in mortal fear are still alive. They are victims of an inhuman or degrading treatment or torture, but not victims of an act of killing.

255 14.1 · 14.1  The Codification of the Right to Life

14

The Function of the Human Right to Life The killing of a person is no attack against the personhood of the killed person, but it is an attack against the offender and all those who tolerate or support the act of killing. This follows from the Equiprimordiality Thesis.

14.1 

The Codification of the Right to Life

This lesson deals with the human right to life. Many people might think that it is simply evident that human life, the pure biological existence of a human person, is a subject of the protection scope of a human right and that philosophical reflections are not needed in order to make this evidence understandable. Nevertheless, we will promptly see that the right to life is different from the rest of the human rights and that this difference leads to certain specific problems. The right to life protects the holders of the right against any acts by which they would be deprived of their life. There are only two possible situations concerning the protection of life. Either someone is alive or someone is dead (because of an act of killing). There is nothing in between. Therefore, it does not make sense to distinguish between a core and a yard of the protection scope. This suggests that the codification of the right to life refers necessarily to the core of that right. There is no limitation or restriction imaginable that could refer only to the yard of that right. For there is no yard of this right. If the right to life has to be regarded as a human right, then it follows that this right cannot be supplemented by any kind of restriction clause or statutory reservation. If the right to life should be regarded as a human right, it must be regarded as an absolute right. If it is an absolute right, then there cannot be any kind of justification for a deprivation of life for whatever reason. Indeed, when we look at the codified right to life in Article 3 UDHR, there is no such restriction clause. Nevertheless, a closer look shows that the right to life was originally not regarded as a human right in the moral sense. The classical human rights codifications of the Age of Enlightenment knew no right to life. Article 1 of the

Core or Yard?

Right to the Resources of Life

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Virginia Bill of Rights speaks indeed of the right to the “enjoyment of life and liberty”. But it was more about the right to seek happiness in life and not a guarantee of biological existence. Maximilien de Robespierre, the great slaughterer of the French revolution, wanted to anchor the right to life in the French Constitution of 1793 as a primary human right. But he did not think of the inviolability of biological existence, but of a right to the economic subsistence minimum, i.e. a right to a good life. It is interesting to see that this idea is still alive. So the UN Human Rights Committee hold in its recent commentary to Articles 6 ICPPR the opinion that the right to life not only embraces the entitlement not to be killed but also the right “to enjoy a life with dignity.“From the point of view that there is no human right to mere biological existence, it is not surprising that the codification of the right to life is subject to numerous exceptions. For instance, Article 2 ECHR contains several restriction clauses (see . Fig. 14.1). It guarantees the right to life, but allows at the same time the execution of the death penalty, as well as acts of killing when necessary for the defense of any person from unlawful violence, to arrest someone, to prevent escape from detention, or in order to oppress a riot. A look at the German Basic Law confirms the result. Article 2 (2) GG places the right to life under a general statutory reservation (see . Fig. 14.2).  

 

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(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. (2) Deprivation of live shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. ..      Fig. 14.1  Article 2 ECHR

257 14.2 · 14.2  The Unique Character of the Right to Life

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Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law. ..      Fig. 14.2  Article 2 (2) GG

The fact that the right to life was originally not regarded as a real human right is deeply rooted in the understanding of the individual’s position toward the community in which it is living. Traditionally, the human individual was considered only as a dependent part of their community. Therefore, it was of no doubt that the community could demand the sacrifice of the individual’s life for the sake of the community. The idea that human individuals do not exist for the sake of the community, but that the community exists for the sake of the individuals, could only be developed slowly and has only influenced human rights codifications since the 1980s. This development is reflected in two Additional Protocols to the ECHR. Protocol No 6 of 28 April 1983 governs the abolishment of the death penalty. Nevertheless, the contracting states could not accept a complete abolishment. So, they agreed on exemptions for times of war or times of imminent threat of war. Only with the Additional Protocol No 13 of 03 May 2002 was the abolishment of death penalty completed by revoking the reservation clause. This example shows that the consciousness of human life as an absolute human right is not rooted in our traditional thinking.

14.2 

The Unique Character of the  Right to Life

Let us now turn to philosophical considerations of the issue. A deep philosophical analysis shows that the human right to life is indeed a very special one that is different from all the other human rights. This will become clear when we consider human rights as a kind of screenplay or script that defines a specific kind of interaction between at least two persons. One of these persons (A) plays the role of the perpetrator of an activity, which affects another person (B). B plays the role of the victim. The content of the perpetrator’s activity consists of shifting B to a state where there is a serious threat to B to be deprived of his personhood. We can

Offender and Victim

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No Victim

call this state shortly an inhuman state. Bringing B into an inhuman state is to be considered a violation of one or more of B’s human rights. The perpetrator A is the person who is obliged to respect the human rights of B. So, we can call the victim B as the obligee of the right while the perpetrator A can be called the obligor of the right. This is obviously not the script of the play that relates to the right to life. All the human rights we have discussed so far refer to a conflict between an obligee and an obligor. In the case of the right to life, there is not such conflict. For this right does not refer to a play with two actors A and B, but only to a play with one actor A. The act of killing by A does not move an obligee B into an inhuman situation. The act of killing does not produce a victim. Instead, the consequence of an act of killing is that the obligee disappears. He is not existing anymore. Someone who does not exist cannot be in a particular state of life. It cannot be said that he is in either a humane or an inhuman state. What we can say is that the death indeed destroys something, namely, both the living entity and all its properties including the attributes of personhood and personality. But there is no one who could have been deprived of something by this destruction. I am not sure whether you will share this view or whether you would like to disagree. Indeed, there are several arguments that suggest that the idea I have presented should be considered false. Subsequently, I will discuss these counter-arguments with the hope that I can show that they are not convincing.

14.3 

14

Confusion of Language

The Existence-as-Attribute Thesis

The first counter-argument refers to the meaning and function of certain concepts. It is therefore a purely philosophical argument. According to this argument, life is an attribute of a living entity. Therefore, it is possible to deprive a living entity of its life just as it is possible to deprive it of any other attribute or good that is protected by a human right. The deprivation of life, therefore, shifts the respective person into an inhuman state. This argument is not convincing. It is based on a confusion of our language. The grammatical structure of our language makes it possible to talk about existence in the same way that it is possible to talk about any attribute of a subject. The proposition “Socrates is existing” and the proposition “Socrates is baldheaded” have the same

259 14.4 · 14.3  The Existence-as-Attribute Thesis

grammatical structure. But a deeper philosophical analysis shows that existence cannot be considered as an attribute. The classical philosophical Ontology1 distinguished between ontological categories, which can be attributed to an entity, and the existence of the entity. Entities differ from each other though the attributes that are ascribed to them. Existence, however, is not a criterion of differentiation but a concept that characterizes an entity as what it is, namely an entity. Being an entity and existing are different words for the same meaning. Therefore, it is not possible to say that an entity does not exist. This is impossible just as it is impossible to say that the line of a circle is not round but straight. In the language of philosophical Ontology, we distinguish between ontological transcendentals and ontological categories. Existence is not a category but rather a transcendental. It does not serve the classification of entities like categories do. Instead, it serves only the characterization of an entity as entity. So, in contrast to the grammatical structure, we can recognize that “Socrates is existing” and “Socrates is hungry” do not refer to the same ontological distinction. The first sentence is a characterization. It says that there is something that is called “Socrates.” The latter is an attributation. Now we understand the mistake in the first argument. Being alive is not an attribute of a living entity, but it is the definition of what is meant by a living entity. The consequence is that it is not possible to deprive a living entity of its life. The killing of a living entity does not lead to an expropriated living entity, but to the disappearance of the living entity.

1 The classical Ontology is the traditional philosophical doctrine of the most general structures of what is. That which is is the being. Ontology assumes the possibility of an objective view of the world and its structures. Nevertheless, what we consider to be the most general structures of the being, are in fact the structures of our language and our thinking. Modern language-philosophy has inherited the legacy of medieval Ontology. Nevertheless, important ontological distinctions are still relevant today.

Categories and Characterization

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14.4  Life as Pre-condition of Personhood

The Basis Thesis

The second counter-argument relates to the fact that a living entity that is endowed with the capacity to develop personhood is the necessary pre-condition of all human rights. Someone can only be a bearer of human rights if he/she exists. So, existence is the pre-condition of all human rights. The required pre-condition of all human rights has to be considered as the protection scope of a human right. This is the right to life. This argument was particularly used by the German Federal Constitutional Court when arguing in favor of an absolute right to life in the context of abortion. I quote the first judgment of 1975:

»» Within the constitutional order life is a supreme value

that is not needed to justify in detail; it is the vital basis of human dignity and the pre-condition of all other basic rights.

14

I think this argument is also not convincing. It is an error to believe that the substantive pre-conditions of an interest must necessarily be an interest for its own. It is, however, easy to show that this idea is wrong. The opposite is true. The condition of an interest must not necessarily be an interest for its own. This is shown in the following example. For someone who makes a flying trip, it is important and valuable that the plane is on time, that the food on board is not poisoned, and that the pilot is not drunk. Punctuality of the flight, the digestibility of the food, and the sobriety of the pilot are conditions for a successful flight. So, they have a value for me when I want to take a plane trip. But if I do not want to make a flight, then these conditions for a successful flight lose their value for me. From the importance of the conditions of a successful flight does not follow that the trip itself is important and valuable. Let us apply this example to the case of human dignity and its pre-conditions. It is true that life is an important pre-condition for a life in a humane state and for the ownership of human rights. As long as you are living and as long as you are interested in life, a human state of living and the holding of human rights are of absolute value for you. But if we have passed away, there is no interest in human dignity and in human rights anymore because the

261 14.4 · The Basis Thesis

entity, which could have been interested in such, does not exist anymore. Human dignity and human rights are valuable in life but they do not constitute the value of life. For those of you who have followed this lecture very attentively up to now, the suspicion might arise that I am entangled within this argument a contradiction. You might remember my argumentation in the fifth lesson about the absoluteness of the value of personhood. I quote from one of the abstracts of this lesson: “Personal identity is absolutely valuable for every person because it is the prerequisite of any other evaluation …” I argued that personal identity (personhood) is the pre-condition of any kind of evaluation and that everything loses its value when it comes to a deprivation of personhood. Therefore, I concluded that personhood is of absolute value for a person. In other words, I concluded the value of the pre-condition of every evaluation, namely the absolute value of personhood, from the value of every evaluation. Now I say in the context of the right to life that it is logically not possible to conclude the value of its pre-­ condition (human life) from the value of a certain human practice. So, the question arises: is this a contradiction in my argumentation? This would be a contradiction if I understood personhood or Person in the sense of Johann Gottlieb Fichte. According to Fichte, person is to be understood as a substance (personal entity). The characterization of a person is personhood. Personhood is the emergence of a will. When a will emerges, the person attains selfawareness. If personhood fades away, then the substance of the person is not existing anymore. Nevertheless, this conception leads to the paradoxical idea that there is a state of knowledge – awareness of oneself as a person – without a subject that has this knowledge. The subject of this knowledge is identical to the object of the knowledge. I prefer therefore the idea that personhood should not be understood as a substance but as a (contingent) attribute of human beings. The subject or the bearer of personhood is the biological entity – the human being – and personhood is something that human beings can possess. If the biological entity possesses personhood then it develops self-awareness as a person. Otherwise it does not. So, you can understand why there is no conflict between my thesis about personhood and my thesis about life. Personhood is a (contingent) attribute of living entities,

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Fichte and Personhood as Entity

Personhood as Attribute

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while being alive is the characterization of a living entity. It is thus logical to conclude from the value of an attribute to the value of another attribute which is the pre-condition of the former. But it is not possible to conclude from the value of an attribute to the value of an entity that is characterized as a living entity.

14.5 

Religious Variant

Ownership of Life

14

The Sanctity of Life Thesis

There are several different variations of the Sanctity of Life Thesis. We can distinguish a theological variant and two secular variants. The theological argument claims that life belongs to God. That is, it is only borrowed from God. Its destruction is therefore a sin against God. From this follows a right to life. I will not discuss the truth of any particular religious faith. This is not a theological lecture but a philosophical one. Thus, what can we say about this thesis from a purely philosophical point of view? The thesis claims that life is property, but not a property of the living entity but the property of someone else, namely of God. This is not problematic from a logical or ontological point of view. The thesis, however, does not meet the conditions of a foundation of the human right to life. It does not justify the right to life as a subjective right of a human individual. The thesis refers rather to a subjective right of God, namely, the right of ownership of the lives of human beings. According to this argument, human beings enjoy the protection of life only as a side-effect but they are not the holders of the right to life. Consequently, this is not an argument in favor of a human right to life, but rather in favor of a divine right to life. Therefore, the argument cannot serve the foundation of the right to life as a human right. An initial secular variant of the argument goes as follows. Not God is the owner of a human life, the human individual is owner of its own life. Thus, it has its life at its disposal and it claims the sole power of disposal. From this follows a right to life. This argument suffers from a petitio principia fallacy (circular argument) because the conclusion is identical with the premise. From the right to dispose of one’s own life is concluded the right to dispose of on one’s own life.

263 14.5 · The Sanctity of Life Thesis

A second secular variant of the Sanctity of Life Thesis (deprivation thesis) goes as follows. Homicide frustrates the victim’s desire to continue living. That frustration is an evil that the respective person suffers. Suppose a person lives 80 years. Typically, she has experienced during these 80 years a whole series of joyful feelings and adventures that make her life seemingly worth living. If she had died at age of 40, her death would have deprived her of all the positive things that happened in the second half of her life. The supporters of the deprivation theory conclude from this idea that the victim of an action of killing suffers a loss (during his life time) that his right to life should protect against. This right, however, has a relative weight that varies between the different ages of humans. The sooner a human dies, the greater the damage he suffers by the loss of positive future life experiences that he otherwise would have been able to enjoy. Upon closer examination, this argument is not as impressive as it first appears. While it is true that those who die earlier are dead longer, the time difference is actually insignificant. The length of time in which the living being is deprived of positive life experience after death is infinite. Even a natural death at 80 or 100 years old frustrates the desire to experience those positive things that would occur in the 81st, the 125th, or the 1013th year of age, and so on. From this perspective, an additional 40, 60, or 80 years of life are not worth mentioning. The deprivation theory does not do what it claims to do. It does not provide reason for a right to life. Rather, it leads to the conclusion that it makes no essential difference whether and when a person dies, or if and when she is killed. Perhaps behind the deprivation theory, however, stands an intuition that is not clearly and unequivocally expressed in the formulation of the theory. The evil of killing does not consist of the fact that death prevents future life, which the person would like to experience. The problem is rather that in the face of death all current life experiences and all plans lose their meaning and value. This argument, however, does not refer to the termination of life by killing as such. It refers to our general living condition where we are always living with the expectation of death. Undoubtedly, we can concede that a person who has not tired of life suffers from the fact that she knows to expect her death. Human life is largely related to the future. Everything we do refers to our future, regardless of whether we think about our great life plans or only our

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short-term actions. In a certain sense, all our activities seem to lose their meaning if our future is limited. Thinking about our death, therefore, usually generates a specific kind of sadness or even desperation. Nevertheless, the question is whether our state of mind when we think of our own death should be qualified as inhumane and contrary to human dignity. Is the awareness of our mortality and of the limitations of all meaning in life not rather a condition for a dignified life? Death may be regarded as an evil because it removes meaning from life. But this evil is not the result of an intentional act of killing, but rather the consequence of our mortality. A human right to life and its strict observance cannot eliminate this evil. It makes no sense to consider the human right to life as a means of achieving immortality.

14.6  Mortal Fear as Inhuman State

14 Case Law

The Mortal Fear Thesis

The Mortal Fear Argument refers to the fact that persons who are threatened with killing feel mortal fear. Mortal fear indeed establishes a state of living in which personhood is in danger. Persons who feel mortal fear fall into a state of panic that deprives them of their ability to form free will on the basis of their own considerations and reflections such that they can live authentic lives. Protection against the evocation of mortal fear is therefore the content of the protection scope of a human right. But this is not the human right to life. It is rather the right to freedom from torture and inhuman and degrading treatment according to Article 3 ECHR.  Mortal fear is something that is experienced while the person concerned is still living. The evocation of mortal fear shifts the person to an inhuman state like in any other case of torture or cruel treatment. The ECtHR consequently distinguishes between protection against mortal fear and protection of life. This ­distinction was made for the first time in the famous case of Soering v. UK. The case was about a young German who was to be extradited from the UK to the USA, where he had been accused of murder. At the time, the death penalty was still not prohibited under the ECHR.  So, the threat of the death penalty would not have been a reason to prohibit the extradition. But the court considered that the claimant would have to face a long period of time expecting his death and would there-

265 14.7 · The Function of the Right to Life

14

fore manifest the so-­called death cell syndrome. This is a kind of permanent mortal fear that deprives a person of the ability to maintain personhood. To subject someone to the death cell syndrome was considered by the Court as a violation of Article 3 ECHR. As a consequence, the accused could only be extradited to the US after the US government gave guarantees that he would not be sentenced to death.

14.7 

The Function of the Right to Life

I come back to my initial thesis – a violation of the right to life does not produce a victim. Post death there is nobody who may be said to be in an inhuman state. In other words, it seems that the violation of the right to life does not produce any damage. So, I have to ask again, how is it possible to understand the right to life as a human right? I think the function of the right to life is not to protect people from an inhuman state that can be brought about by an act of killing. Instead, the function is to protect people from a state of living that is simply established by the fact that human life – that is, the life of every member of the respective society – is only a relative value. Such a state of living must be considered as inhuman. Every member of a society where the absolute right to life is not recognized knows or has to learn that his or her existence is only of a relative value and that even the fact that he or she is a person is not relevant. Everybody has to be aware that he or she is estimated by the others only for the benefits that his/ her existence produces for the society. The value of his or her life always depends on the relative and contingent interest that society has on the life of its members. This inhuman state of living is not established by a particular act of killing but simply by the absence of an absolute right to life. The absence of the absolute right to life leads to an attitude and character of the people that is epitomized by a lack of self-esteem and a disposition for self-humiliation. This population will not have an awareness of their dignity and can be instrumentalized for any purposes. They will be ready to violate the human rights of their fellow humans with all the brutality and mercilessness that their leaders demand from them. They also do not have the language or the strength to defend themselves against a violation of their own human rights. So, the absence of the absolute human right to life functions as a message of a society to

Consequences of the Absence of the Right to Life

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Suicide and Killing on Demand

its members about their worthlessness. Nevertheless, the presence of the absolute right to life is a message as well. It tells the story of human dignity and of the absolute value of all human persons. So, in a certain sense, we can say that the function of the right to life is a symbolic one. But its symbolism is of huge value and importance for society. This symbolic function makes the difference between a society whose members are aware of their dignity and a society whose members are not. I think this argumentation sufficiently demonstrates that the right to life is really a human right. The argument further shows that the right to life is only a very clear example for what is true of every human right. The violation of human rights affects not only the victim, but also the offender and those who are ready to tolerate the offender and its actions. The offender as well as those who tolerate him, in turn, become the victims of every violation of human rights. For toleration or indifference toward a violation of human rights leads directly to a loss of the awareness of being someone and not just something. This confirms the equiprimordiality thesis (see lesson 5 and 6). As you hopefully remember, this thesis explains why the disregard and devaluation of the personhood of others leads necessarily to the disregard and devaluation of one’s own personhood. From these considerations follow that the right to life is indeed to be regarded as a human right that protects the life of the human person against any kind of attack. There is no justification for the deprivation of life, at least against or without the will of the person from whom life will be taken. The concrete violation of or the abstract disregard toward the human right to life leads to a symbolic devaluation of the personhood of all the other members of the society. Such acts of devaluation have very bad ­consequences for the offenders and the society that tolerates such actions. Nevertheless, the question arises whether it is conceivable to have acts of killing that are not connected with such a devaluation of the society. I think this is true in the case of suicide. Suicide cannot be considered as an act of killing that devaluates the absolute status of the rest of society. Furthermore, this is also true for acts of assisted suicide. This is at least the case if the respective person has seriously reflected on the reasons for committing suicide. Furthermore, it is also true in cases of killing on demand. Respect for a person who wants to

267 Reading Recommendations

commit suicide, assisted suicide, and the so-called killing on demand is respect for the free will of the person that makes such a choice or demand. This is just the opposite of devaluating the personhood of others. A more problematic case refers to the so-called final rescue shot. Let’s take the example of a kidnapper threatening to shoot a hostage every 10 minutes. Let’s say he has done so several times. A sniper can prevent the next hostages from being killed by killing the kidnapper with a targeted shot. Is this a case where we can say that it is possible to kill a person without any devaluation of the dignity of all other members of society? Can we say that the symbolic function of the right to life is not activated in this case? I am not sure. But I guess many of you will answer this question in the affirmative. ??Do you still remember? 14.1 The right to life has a unique character that distinguishes it from all the other human rights. What is the difference? 14.2 What is the core function of the right to life? 14.3 Is there a justification for the death penalty? 14.4 Is there a justification for assistance to suicide or acts of killing on demand?

For the answers, see 7 Chap. 21.  

Reading Recommendations Fichte, Johann Gottlieb: see chapter 5. Robespierre, Maximilien de: On property. Speech of 24 April 1793 https://rbzpr.­t umblr.­c om/post/143313847630/robespierre-on-­ property-­24-april-1793 Tiedemann, Paul: Is there a Human Right to life? In Jahrbuch für Recht und Ethik / Annual Review of Law and Ethics 20 (2012), 345 Tomuschat, Christian/Lagrange, Evelyne/Oeter, Stefan (eds): The Right to Life. Leiden/Boston 2010 UN Human Rights Committee: General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life,  – CCPR//C/GC/36 – https://tbinternet.­ohchr.­ org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_ GC_36_8785_E.­pdf

Case Law BVerfG jud. of 25/02/1975 – 1 BvF 1,2,3,4,5,6/74 –, BVerfGE 39, 1 [42] (Abortion I) BVerfG jud. of15/02/2006 – 1 BvR 357/05, BVerfGE 115, 118 (Abortion II) ECtHR, jud. of 07/07/1989, – 1/1989/161/217 –, Soering v UK, HUDOC

Final Rescue Shot

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Social Human Rights Contents 15.1

 he Distinction Between Liberal and Social T Human Rights – 274

15.2

The Codification of Social Human Rights – 275

15.3

The List of Codified Social Human Rights – 277

15.4

 he Goods of the Social Human Rights and its T Relevance for Humane Living Conditions – 278

15.5

 uties to Refrain From Doing Something D and Duties to Do Something – 283

15.6

The Utilitarian Approach – 284

15.7

The Deontological Approach – 285

15.8

 ocial “Human Rights” are Not S Human Rights – 289

15.9

The Redundancy of Social Human Rights – 291 Reading Recommendations – 292

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_15

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Social Human Rights and Liberal Human Rights While the so-called classical or liberal human rights refer only to respect for one’s human dignity and to the duty to refrain from any action by which the personhood of other persons could be damaged, the so-called social human rights refer to the duty to do something, namely to establish living conditions that allow a dignified life. According to the UDHR and the International Covenant on Economic, Social, and Cultural Rights of 1966, conditions of that kind embrace guaranteed access to the subsistence minimum, access to labor, fair working conditions and fair remuneration, access to an education system and to cultural life, and access to a healthy environment or a public health care system (“right to health”).

“Social Human Rights” are Not Rights!

15

The UDHR as well as the International Covenant on Economic, Social, and Cultural Rights of 1966 do not take the term “right” seriously. Article 22 UDHR does not oblige the contracting parties to recognize given moral rights, but it obliges the states to create the institutions to which economic, social and cultural rights can guarantee access. This obligation is not mandatory and depends on the resources of each state. The codified so-called social human rights should be regarded as policy objectives. These objectives are supposed to establish dignified living conditions for everyone. Dignified living conditions are characterized by the availability of all resources and means which are necessary for the development and maintenance of personhood.

The Obligor of Social Human Rights The single individual cannot be considered a debtor of social human rights. The establishing of dignified living conditions like a subsistence minimum for everybody or an education system demands, in any case, resources which are far beyond what is at the disposal of single individuals (except perhaps for some billionaires).

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Therefore, only powerful organizations, in particular states, can be regarded as debtors of social human rights. Considering that the legitimate function of human organizations depends on their constitution, a state can only be considered a debtor of social human rights if that state has introduced social rights as part of its law. By doing so, the state becomes a “welfare state” or a “social state.” From this follows that social rights presuppose not only the existence of a state, but also the setup of social institutions on the basis of the positive law of the state in question. Therefore, there cannot be a super-positive moral social human right. From a moral point of view, it is nevertheless possible to ask whether sufficiently powerful states have the moral duty to introduce social rights by legislation.

The Conditions of a Dignified Life If an individual life is epitomized by the daily struggle for survival which consumes almost all physical and mental power, then there is in this life no room for self-designed authentic self-determination on the basis of one’s own considerations and reflections. Therefore, a sufficient subsistence minimum is a basic condition of a dignified life. If an individual life is epitomized by the daily struggle against pain or the obstacles of physical or mental disabilities which consume almost all physical and mental power, there is in this life no room for self-designed authentic self-determination on the basis of one’s own considerations and reflections. Therefore, a healthy environment and an adequate health care system are basic conditions of a dignified life. Education and access to the cultural life of society are the basic conditions of rational considerations. They protect against manipulation and widen the options for a life according one’s own life plans. A sufficient and appropriate level of education is therefore a required condition for a dignified life. Labor must take place under fair conditions and be free from exploitation. These are required conditions of a dignified life because otherwise the worker is deprived of the freedom of a self-designed life based on an authentic free will.

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The Right to Labor Labor as such cannot be considered a required condition of a dignified life. The idea of labor as an intrinsic value and basic condition of a dignified life is deeply rooted in what Max Weber has called the “spirit of capitalism based on protestant ethics.” It is to be considered pure ideology. From this follows that, for example, an unconditional basic income does not violate human dignity and is not a threat to a dignified life.

The Duty to Establish (Positive) Social Rights = Social Institutions A world with dignified living conditions for everybody is better than a world with dignified living conditions for only some or for only a few. Social institutions that provide access for everybody ensure dignified living conditions for everybody. Therefore, establishing social institutions and introducing a right to access them lead to a “better” world. A strict moral duty to establish social institutions can only be considered if morality aims to the improvement of the world, including improved life conditions which ensure a dignified life for everybody. On the other side, a strict moral duty to establish social institutions does not exist if morality refers to a behavior which is as such morally good, regardless of whether it contributes to a better world.

Utilitarian and Deontological Ethics

15

Utilitarian ethics (Bentham, Mill) aim to improve the world. It is object-related. Therefore, it is possible to defend a Utilitarian moral duty to improve the world by establishing dignified living conditions for as many people as possible. Utilitarian ethics, however, do not allow the introduction of subjective moral rights because subjective rights demand respect of the protected interest of the owner of the right even if respect for his right hinders the improvement of the world or makes the world worse. The improvement of the world demands rather offsetting conflicting interests, finding compromises between conflicting

273 Chapter 15 · Social Human Rights

interests, and striving for a positive end result in favor of the world (not in favor of an individual right holder – “practical concordance”). Deontological ethics (Kant) is agent-related. It does not aim to improve the world, but to ensure the basic moral position of moral agents. Therefore, deontological ethics allow for the introduction of subjective rights. Nevertheless, deontological ethics does clearly distinguish between moral duties to refrain from doing something (bad behavior) and moral duties to do something (to improve the living conditions of others). While the omission-related duties are considered strict duties, the action-related duties are considered only relative duties. Their binding power depends on the proportionality of the needed efforts and resources. Deontologists consider that it is only reasonable and proportional to invest resources for the improvement of one’s living conditions when the available amount of resources is sufficient enough to do so, and when it is possible to do so without damaging the moral position of agents. Action-related duties stand always under the reservation of reasonability. According to Kant, they are called imperfect duties while the omission-related duties are called perfect duties. The binding power of the latter, if they refer to human rights, is absolute and strict.

Social Human Rights and Deontological Ethics Considering that the conception of human rights is deeply rooted in the deontological approach of ethics, the idea of social human rights is systemically alien to this entire conception.

Social Human Rights in Case Law The aims of social human rights can also be achieved on the basis of pure liberal human rights. This is evident in the case law of the ECtHR (Judgment of 21 January 201 – M.S.S. v. Belgium and Greece – §§ 249, 250, 263, 264). According to this judgement, it is possible to derive a real right to access to social institutions from

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(1) the positive law about the establishing of a particular social institution and (2) from the ban of inhuman and degrading treatment (Article 3 ECHR). The exclusion from a given social institution that ensures the subsistence minimum was considered a violation of Article 3 ECHR. Duties under Article 3 ECHR do not impose an obligation to do something but they impose an obligation to refrain from doing something, namely the exclusion of people in need from the social institutions which are dedicated to the aim of supporting people in such a situation.

15.1  The Distinction Between Liberal

and Social Human Rights

Omission v. Action

15

This lesson is dedicated to the so-called social human rights. The attribute “social” serves here to distinguish this group of human rights from the group of the socalled liberal human rights. All the rights I have dealt with before in this lecture were liberal human rights. In principle, the difference between these two groups is not a difference in terms of the protection scope. Generally, we can say that the idea behind social human rights, as well as behind liberal human rights, is the protection of human dignity. The difference, however, is that the liberal rights refer to a prohibition. They prohibit the deprivation of a specific good that is necessary in order to maintain a state of living under humane conditions. The violation of liberal rights lead to a state of living under inhuman conditions, i.e., under conditions that contradict human dignity. Liberal human rights refer to the duty to respect. Respect means to refrain from doing any action by which goods are deprived, which are the basis of a life under humane conditions. The aim of liberal human rights is, so to say, to leave the world as it is. In contrary, the social human rights do not refer to omissions, but rather to active actions. They command the production of those needed goods which are the basis of life under humane conditions. The aim of social human rights is, so to say, to change the world by improving the conditions of life in order to first make a life under humane conditions even possible.

275 15.2 · 15.2  The Codification of Social Human Rights

15.2  The Codification of Social Human Rights

The principle of social human rights is expressed in Article 22 UDHR (see . Fig.  15.1). It is interesting to see that Article 22 seems to refer only to one human right, namely the right to social security. Furthermore, the States Parties only undertake to make efforts at the national and international levels, within the resources available to them, to establish economic, social, and cultural rights if at all. These latter mentioned rights are not immediately accessible. They must first be established and this depends on the available amount of resources. In any case, according to the wording of Article 22, there seems to be a subjective right which is directly established by that article, namely the right to social security. Nevertheless, this “right” is also not meant as a real right on its own. Its content follows only from the following articles which refer to the right to labor (Article 23 UDHR), the right to rest and leisure from labor (Article 24 UDHR), the right to an adequate standard of living (Article 25 UDHR), the right to education (Article 26 UDHR), and the right to participate on cultural life (Article 27 UDHR). So, in other words, the expression “right to social security” does not have any substantial meaning. It operates only as a collective name for the enumerated single social rights. Article 22 UDHR obviously does not refer to supra-positive moral rights, but only to a supra-­positive duty of the states to establish certain rights so far as it is possible and reasonable. The consequence of this fact is that a lack of social human rights in a particular state does not indicate that the state in question does not respect human dignity and is therefore an unjust state. It indicates only that there are

UDHR

 

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. ..      Fig. 15.1  Article 22 UDHR

Right to Social Security

Resources and Allocations

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Only the State as Obligor

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Member of Society

some deficiencies. But it is not possible to classify these deficiencies as a lack of morality. They could be simply caused by a lack of resources and therefore be morally indifferent. Furthermore, it is not possible to conclude from a given amount of resources to a certain standard of social human rights. For it is legitimate to allocate a given amount of resources in different ways. The allocation of given resources is largely a question of politics and not a question of morality because it can hardly be said that a certain kind of allocation is to be considered immoral. So, it is not only morally possible to only invest the resources for the realization of one or two social rights while the others are put aside, but also possible to completely use the resources for other aims and not fulfill the aims of Article 22 without any conflict with morality. So, it is imaginable that a state invests all its available resources for the sole aim of establishing public security or, let’s say, in favor of the protection of the country against natural disasters (e.g., by building dams and dikes), or perhaps also in favor of military defense in a particular situation of external threats. There is another difference to liberal human rights. The obligor of liberal human rights is not only the state, but primarily every single person. The state is to be considered an obligor of liberal human rights only in a derived sense. In contrast, social human rights can only be addressed to the state. They aim to achieve social standards of living whose set up depends on resources which are always beyond the resources of single individuals. Institutions of social security are always based on a specific common cooperation while the respect toward liberal human rights does not depend on any kind of social organization. The validity of liberal human rights does not depend on the existence of states. In contrast, social rights can only exist where there is a functioning state who can be the addressee of these rights. Liberal human rights can be violated regardless of whether there is a functioning state or whether there is a state that exist at all. Social human rights presuppose the state as an addressee and that the respective state has established social institutions. The establishment of social institutions and the introduction of social human rights to access to them is, however, a question of positive law. Considering that social human rights are based on a common cooperation in the frame of a functioning state, it follows that the obligees of these rights can only be those

277 15.3 · 15.3  The List of Codified Social Human Rights

who, in a specific sense, are appointed as obligees of the rights in question. This is also a matter of positive law. In general, only the inhabitants or, at least, the citizens of the state are recognized as obligees of social rights. This is expressed in Article 22 UDHR by the words “member of society.” From a philosophical point of view, we can say that only the participants of the common cooperation on the national level are to be considered the obligees of the social human rights that are based on this cooperation. This moral idea is based either on the principle of equality or the principle of solidarity. In any case, not every person can be considered an obligee of social rights. Personhood alone is not sufficient in order to justify participation in social institutions. Therefore, social rights cannot be considered human rights. From all this follows that the expression “social human rights” in Article 22 UDHR is not appropriate. From a super-positive point of view, nobody has a moral or legal human right to demand a certain standard of social security. 15.3  The List of Codified Social Human Rights

The UDHR enumerates four groups of social rights, which all together consists of thirteen particular rights: 1. Rights concerning labor (Articles 23 and 24) 1.1. The right to labor 1.2. The right to free choice of employment 1.3. The right to just and favorable conditions of work 1.4. The right to protection against unemployment 1.5. The right to equal pay for equal work 1.6. The right to a sufficient remuneration in order to ensure the subsistence minimum under humane conditions of life 1.7. The right to form and to join trade unions 1.8. The right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay 2. Rights concerning the unconditional subsistence minimum in the event of circumstances beyond one’s control. (Article 25) 3. The right to education (Article 26) 3.1. The right to free access to elementary schooling

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3.2. The right to equal access to professional and higher education on the basis of merit 3.3. The right of parents concerning the priority by choosing the kind of education for their children. 4. The right to participate in the cultural life of the community (Article 27) These rights were declared as “a common standard of achievement for all peoples and all nations” (preamble, paragraph 8). They were transformed into international binding law by the International Covenant on Economic, Social, and Cultural Rights of 16 December 1966. In contrast to the UDHR, the Covenant of 1966 added a fifth group of rights (Article 12), namely: 5. The right “to the enjoyment of the highest attainable standard of physical and mental health” (right to health) There are also several international conventions that provide additional rights to this corpus of social human rights, for example, the right to educational promotion of handicapped children (Article 23 UN Convention on the Rights of the Child – CRC). The ECHR does not contain social human rights. The members of the Council of Europe agreed, however, on the European Social Charter of 18 October 1961 and its three additional protocols from 1988, 1991, and 1995. 15.4  The Goods of the Social Human Rights

and its Relevance for Humane Living Conditions

15

Subsistence Minimum

Now we should briefly consider whether the codified social rights can be understood as adequate conditions of a human life in dignity so that we can say that the absence of these rights and the absence of the institutions to which the rights guarantee access constitute an inhuman state of living that should be abolished if possible. If this is the case, the social institutions in question can be considered at least as a matter of desire when we recognize the absolute value of human dignity. First, we can ask whether from the viewpoint of human dignity there is a strong desire to guarantee access for all

279 15.4 · The Goods of the Social Human Rights and its Relevance…

persons to a subsistence minimum. The subsistence minimum embraces enough food, clothing, and accommodation. I think it is indeed obvious that there is a very close connection between the subsistence minimum and a dignified state of living. Someone who suffers from a lack of the minimum of food that is needed for the maintenance of physical life is not able to lead his life on the basis of an authentic will. His life is completely filled with the search for food if he is not already too weak to look for food and can thus only vegetate. Someone who is homeless and lives on the streets will suffer from a lack of privacy and basic security, which prevents him from relaxing and coming to himself. So, it is obvious that the subsistence minimum is indeed a necessary condition of a dignified state of life. The same thing becomes clear when we consider a severe lack of health. Living in severe illness or with severe handicaps or diseases hinders persons from leading their own life on the basis of their own considerations and reflections because all their strength and all their mental as well as bodily energy is focused on the suffering of pain or the surmounting of everyday obstacles. I think this is so obvious that there is no need for more detailed explanations. But what is about education? Article 26 (2) UDHR provides a useful hint with regard to this question (see . Fig.  15.2). In particular, the first sentence shows why education is closely connected with a dignified state of life. Education provides the means that someone must apply when considering and reflecting upon and creating their own free will. The ability to produce an authentic will depends on the ability to collect information and the appropriate consideration of such. This requires the ability of intellectual analysis which is based on a proper capacity to use language. The development of a sufficiently sophisticated language is the most important aim  

Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. ..      Fig. 15.2  Article 26 (2) UDHR

Health Care

Education

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Cultural Life

Right to Labor?

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of education as long as it is to be directed to the full development of personhood and the ability to create an authentic personality. Another aim of education has to be the strengthening of respect for human rights. This is also a necessary condition for the development of an authentic personality because only the consciousness of human rights and human dignity makes a person able to reflect upon personhood and the absolute value of the personhood of oneself and of others. Education about human rights leads to the consciousness of personhood and of the fragility of personhood. It makes a person aware of the risks and threats to personhood and vigilant of the protection of personhood. These are the conditions under which it is first ­possible to make use of human rights. The right to participate in the cultural life of the community is a condition of communication and a necessary means for real utilization of the communication rights. Someone who is excluded from the cultural life of the community is not able to consider all the aspects that are relevant for his/her life plan and that are, in principle, available in the community. So, exclusion functions as a sort of manipulation of the will of the excluded individuals. So, we can recognize that the right to subsistence minimum, the right to health, the right to education, and the right to participate in cultural life indeed serve a standard of living where persons can freely develop their personality on the basis of their own considerations and own reflections so as to lead a dignified life. But what is about the right to labor? Speaking honestly, I do not feel that I do not live under dignified conditions although it has been some years since I retired and have not been forced to work. I can do without labor in exchange for money very well. You might say that even as I am saying that, I am in fact working because giving a lecture is also a kind of labor. But contrary to Article 23 (3) UDHR, I do not receive just remuneration for what I do. In fact, I get nothing for this work. Do I therefore live under inhuman conditions? I do not think so. I guess that the idea according to which labor is considered an intrinsic value and even a good that is a necessary condition of a humane state of living is based on a certain ideology which is typical for the cultural identity of the societies of central and northern Europe as well as in the Anglo-Saxon hemisphere. This ideology goes back to the

281 15.4 · The Goods of the Social Human Rights and its Relevance…

times of the European Renaissance and is closely connected with the history of the Reformation. The Reformation movement was strongly influenced not only by Martin Luther (1483 – 1546) but also by the Swiss theologians Huldrych Zwingli (1484 –1531) and Johannes (Jean) Calvin (1509 – 1564). In addition, I should mention the Scottish reformer John Knox (1514  – 1572). Their great influence in the development of the central European assessment of labor was analyzed by the famous German sociologist Max Weber (1864  – 1920) in his work The Protestant Ethic and the Spirit of Capitalism of 1904/05. According to Weber, the basic idea of the protestant ethos of work is that labor has value in itself. We should not work only because it is necessary to work in order to ensure our livelihood. We should work because labor is the meaning of life. It is not possible to live a meaningful human life without working. This idea is in particular confirmed by the teachings of Jean Calvin. They consist of five points, among them the points of total depravity and unconditional election. Total depravity means that human beings by nature are not able to understand the holy scrips and that they therefore are damned to go to hell after their death. Only a few number of human beings are unconditionally elected by God. They will rise on the last day and come to heaven. Those people who are elected by God are already identifiable during their life on earth. They are, so to say, marked by their successful and pious life on earth. Therefore, if there is a person who is very successful in business and enjoys economic wealth it can be concluded that this person has been elected by God. The belief in these teachings led to a strong motivation to be diligent and industrious and always pursue economic success. People did not pursue wealth in order to enjoy their life by consuming their money. Instead, they worked in order to get money that could be invested in new industrial equipment in order to get more money that could be invested to get still more money, etc. They lived very simple, modest and frugal and tried to work and to work and to work. They invested the results of their work always in new ventures and continued to work in order to confirm to themselves and to the society that they had been elected by God. So not only they but the entire society became more and more rich. The protestant spirit of capitalism led finally to the big industrial states in England, in the United States, in The Netherlands and in the Scandinavian coun-

Calvinist Ideology

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tries as well as in some parts of Germany. At the end of the 19th century, it was obvious that the protestant countries had achieved a much higher standard in terms of economy and industrialization then the catholic countries around the world. In Germany, one could easily see that the protestant parts of the country were much richer then the catholic parts. The idea that labor has an intrinsic value was a pure ideology. But this ideology was very useful to develop the country. So it is at least partly true to say that our current economic wealth is based on a very strange ideology of the 16th century. And the most important part of that ideology was the idea of the intrinsic value of labor. The Protestant ethic has not only strongly influenced central and western European capitalism, but also the labor ethos in the context of Socialism and Communism. So, labor was also considered in the Soviet communism as the core of the meaning of life. Only a worker was considered as a member of society that could be taken seriously and that could expect some respect. The current influence of the protestant ethics is clear to see in the context of the debate about an unconditional basic income (UBI). Although everybody knows that the increasing automatization of the industrial production as well as of huge parts of what is called the services sector will very soon lead to increasing unemployment, these changes are not like those of the past, which resulted from regular economic fluctuations. These current changes are characterized by a deep systemic change in the structure of production. We can observe a strong resistance in particular from representatives of trade unions and political parties of the left wing against UBI. For them, the value of labor is not only an extrinsic one. Labor is for them not only a means of survival under certain social conditions. It is rather an intrinsic value. For them, labor has value in itself. Therefore, they cannot imagine a society in a dignified state of living that is not based on labor, but on automatization. It is obvious that this idea is completely different from the attitude toward labor that is common outside of the Protestant culture. Even in Catholic countries like Italy or in orthodox countries like Greece nobody would share this idea. Outside the Protestant culture, labor is considered only as a means of life that is largely unavoidable. But, it is not an end in itself. In other words, outside Protestant ethics it is not understandable why labor should be a constitu-

283 15.5 · Duties to Refrain From Doing Something and Duties . . .

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ent condition of a dignified state of life. This is why I think that labor is not really a required condition of a dignified life under every conceivable circumstances. The right to labor is therefore rather to be considered a fake human right. In lesson 17, I will present some additional fake human rights. In order to avoid misunderstandings, I want to add that it is of course an attack on the freedom of a person to hinder her to work when there is work available for her and when she needs to work in order to earn her livelihood. On the other hand, if the economic situation is such that labor is not needed, in other words, when there is no demand of labor, then there is no violation of any right even if the person concerned would like to work. In contrary, it would be simply nonsense to establish opportunities for work without any economic demand for work. 15.5  Duties to Refrain From Doing

Something and Duties to Do Something

Now I want to come to the philosophical core questions related to the so-called social human rights. As we have seen before, the expression “right” makes less sense in combination with “to health” or “to education” because such a right can only be understood as a right to access to institutions of healthcare or institutions of education. And these institutions must first be established before access to them can be available and a right to access can be conceivable. Before such institutions have had been established, rights can only come into play if there is a strict duty to establish such institutions. There must be an obligor who bears the obligation to set up social institutions. We have seen above that the legal social rights cannot be considered rights that correspond to strict duties in that sense because they stand always under the reservation of sufficient resources and an appropriate policy of allocation. Nevertheless, from a philosophical point of view it is possible and useful to ask whether there is a super-positive duty to establish social institutions that serve the purpose of ensuring dignified living conditions. As we have clarified above, such a duty cannot be addressed to single individuals because single individuals do not have the power and the resources to establish social institutions. But it can be asked whether such a duty arises if there is a commu-

Supra-positive Duty to Setup Social Institutions

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Omissions/Actions

nity or a system of cooperation that is powerful enough and has sufficient resources to establish social institutions. If we answer this question in the affirmative, we could say that the moral duty to establish social institutions comes along with the existence of sufficiently powerful states. As we have seen in the beginning of the lesson, liberal rights refer to prohibitions while social rights refer to commandments. In other words, liberal rights oblige to refrain from doing something while social rights oblige to carry out something. So, we can say that the crucial characteristic of differentiation between liberal and social rights goes along the difference between omissions and actions. Nevertheless, this is only a logical difference that does not answer the question whether this difference is morally relevant. It could be that there is no moral difference between duties that refer to omissions and duties that refer to actions. Only if the obligation to do something can be considered an absolute obligation like the obligation to refrain from doing something is it conceivable that human rights can relate to such an obligation. Otherwise, it is not possible that social rights – even if we understand them as duties to establish social institutions – can be considered human rights. 15.6  The Utilitarian Approach

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Philosophers answer this question differently and it depends on their general approach to ethics whether they share the one or the other opinion. In particular, we have to distinguish the Utilitarian and the Deontological approaches. The Utilitarian approach comes to the conclusion that there is no difference in the intensity of the moral binding power of an obligation to refrain from doing something or of an obligation to do something. The reason for this result is that according to this approach the crucial criterion of right and wrong in a moral sense is whether the consequences of a certain action or omission lead to a state of world affairs that is valuable or preferable or whether the consequences lead to a state of world affairs that is worse compared with the state of the world before the action or omission was committed. The difference between omissions and actions does not matter. It is only crucial to what

285 15.7 · 15.7  The Deontological Approach

extent the omission or the action contributes to the maximization of benefits or to the minimalization of drawbacks. The only thing that is relevant is the causality of human behavior, regardless of whether it consists of an action or of an omission. Therefore, there is no morally relevant difference between action and omission. As we already have seen in the third lesson, the Utilitarian approach is not compatible with an ethics of human rights. Utilitarians do not have an appropriate understanding of subjective moral rights because rights are simply not sensible in the context of Utilitarism. This is why this approach does not help us further. The conception of human rights is based on a deontological approach of morality. So, we have to clarify the question of the moral difference between omissions and actions from a deontological point of view. 15.7  The Deontological Approach

The Deontological approach was developed by the German philosopher Immanuel Kant (1724 –1804). The expression “deontology” refers to the Greek to deon that means the duty or the propriety. Kant stressed the fact that what we might prefer may not necessary be a subject of a moral duty. In contrast, it is possible that the pursuit of certain preferred aims is evil and not in accordance with moral rules. So, he taught that morality should not depend on particular preferences or a certain state of the world affairs. Morality does not refer to certain states of the world, but it refers to the quality of human actions (or omissions) and the quality of the will behind these actions (or omissions). Deontological theories deny that moral obligations refer to extra-moral goods like pleasure, happiness, or the common welfare. According to the deontological approach, morality requires, for example, keeping a promise despite it having no benefit for the debtor or for the community or even if it causes them harm. The reason why promises should be kept is only that a promise represents a right of the receiver of the promise, namely the right to get what has been promised. If we set aside the consequences of our actions and omissions in regard to the world affairs and if we reflect only on the quality of our actions and omissions as such

Factual Difference Between Omissions and Actions

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Action

No difference

Reasonable

Supererogatory

Omission Intensity 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

..      Fig. 15.3  The efforts of actions and omissions

and on the will behind them, then we can see that there can be a difference between omissions and actions in terms of the efforts that are required. Although this is only a factual difference, this difference makes the point of the moral difference. First, let us consider the factual difference in terms of the necessary efforts that must be taken in order to make the action or the omission successful. The diagram above (see . Fig.  15.3) shows that the efforts that are required in order to make an omission successful (blue line) are in principle always the same. The efforts that are to be undertaken in order to make an action successful (red line) can vary. There are situations in which the efforts of an omission and of an action are almost the same (intensity 1 – 3). Let us consider the following example. Let’s say you are a trained rescue swimmer. You are swimming in a pool and just in front of you is a little child who is at risk of drowning. Only a little effort is required for you to rescue the child. In this situation, it is hard to explain why there should be a relevant difference in the morally binding power of a duty to act compared with the binding power of a duty to refrain from doing something. But there are other cases possible where the efforts of the action are much more intensive than the efforts that are required to be undertaken for the omission (intensity 4–11). For example, it is easy not to deprive someone of his subsistence minimum (duty to refrain from doing something). You simply have to do nothing. Compare the duty to provide a subsistence minimum for all those in need. Here, the efforts can increase rapidly. For these cases, the question arises whether the degree of intensity of the  

15 The Efforts Supererogatory Actions

287 15.7 · 15.7  The Deontological Approach

effort makes a difference that is morally relevant. Nevertheless, we can say that there is a moral obligation to do something (providing subsistence minimum) if the efforts are not too high, i.e., if it is reasonable to bear them. Still, we could say that the binding power of the duty becomes stepwise weaker in relation to the stepwise increase of the efforts. From a certain point on, we have to state that the effort is no longer reasonable. Here begins the sphere of moral actions called supererogatory. There is no moral obligation to do supererogatory moral actions and consequently there is no right to fulfill these actions. But, it is morally meritorious and worthy of admiration and gratitude when someone does such things while accepting high personal sacrifices. But the question arises whether there is a standard according to which we can judge whether a certain effort of possible actions is to be considered reasonable. In order to answer this question, we have to apply the principle of Universalization. I will do that in the form of the thought experiment of John Rawls concerning the veil of ignorance that you know from the fourth lesson. Behind this veil, we do not know whether we belong to the group of those who suffer from a shortage of dignified living conditions and hope for support from their fellow humans or whether we belong to the group of those who would be obliged to actively help those in need. Behind the veil of ignorance we do not know whether we are going to enjoy the benefits of the moral rule in question or whether we are going to bear the burden of that rule. In this situation, every rational individual would agree to a moral rule that only obligates it for support if the amount of efforts is not unreasonable high. The efforts are unreasonably high if our engagement more or less consumes our freedom to lead our life according to our own life plans so that we have the feeling that we no longer lead our own lives, but only serve the purposes of those toward whom we are obliged to help. Considering that the reason of morality is not only a dignified life for others but also a dignified life for ourselves, we can refuse support when our own dignified life is in danger. And this is the case where we can no longer lead our own life on the basis of our own life plans where the available choices between different life plans are so small that we cannot consider them as serious choices.

Reasonability

Veil of Ignorance

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It is of course possible to make the support for others part of our own life plans. In this case, we are not hindered from realizing our lives according to our own life plans even if the amount of efforts consume a large part of our life. But there is no duty to make the support for others a relevant part of our own life plans. Deontological ethics does not aim to the best possible state of the world, but only to our own autonomy and respect for the autonomy of others. This attitude will not only be shared by those who imagine themselves behind the veil of ignorance as belonging to the group of supporters. It will also be shared by those who imagine themselves as belonging to the group of persons in need for support. Individuals who suffer from a shortage of dignified living conditions dream of a life where they can enjoy the same autonomy as those who are already in this position. They do not dream of a life under moral conditions that obliges them to sacrifice all their aims and values so that they may help others overcome the state of shortage. Let me explain this with an example. If there would be a strict moral obligation to support everybody who suffers from a shortage of the subsistence minimum in order to assure that they can escape from this undignified condition of life, then we would be obliged to share our fortunes with them up to a level of the subsistence minimum for ourselves. We would morally be entitled only to demand the subsistence minimum for ourselves and nothing beyond that as long as there were people whose subsistence minimum had not yet been assured. All goods beyond the subsistence minimum would have to be considered a mere luxury, which to possess would be morally unacceptable. To be fixed on the level of the subsistence minimum without any morally acceptable chance to escape and the duty to give away everything beyond the subsistence minimum level to others would make our lives very bleak and sad. I hope to have shown that behind the veil of ignorance we would accept that the binding power of moral obligations depends on the intensity of efforts we have to make in order to fulfill the obligation. In the case of an omission, the efforts are in principle very low. The only thing we have to do is simply nothing. In contrast, in the case of actions the efforts can be very high. They can be so high that they more or less consume all of our resources beyond our own subsistence minimum.

289 15.8 · 15.8  Social “Human Rights” are Not Human Rights

What is true for the duty of individuals to render aid for those in need is also true for states. The resources of states are always limited. The primary purpose of a state is to organize the coexistence of citizens as well as possible. This undoubtedly includes the establishment of social institutions. But the state must also be able to set up other institutions, such as institutions of internal and external security, institutions for the protection of natural resources, institutions of research and science, and much more. Only in very rare cases will it be possible to fulfill all these tasks simultaneously and maximally. Normally, states are forced to make choices. This choice depends on the way people want to live. In this respect, one can speak of the autonomy of a people. How this autonomy is exercised and which institutions should be established is a matter of politics and not a question of human rights. In any case, we must conclude that according to the deontological approach the moral obligation to act is always to be consider a relative obligation while only the moral obligation to refrain from doing something can be considered a moral absolute. In the words of Kant: we have to distinguish between perfect and imperfect duties. From this follows that obligations to act can be derived from the principle of human dignity only if the required action is reasonable. There is no absolute and strict command to fulfill moral actions but only to moral omissions. In regard to respect toward human dignity, actions are only commanded if the efforts are proportional and reasonable in relation to the resources and do not sustainably restrict the scope of one’s own autonomy. 15.8  Social “Human Rights” are Not Human

Rights

If we apply these results to the codified social rights we can understand why these rights should not be considered human rights. The guarantee of the subsistence minimum for everybody, an education system or a health care system which are accessible for every human person cannot be provided by particular human persons. They can only be provided by strong social organizations. Unlike the liberal human rights, the so-called social human rights cannot oblige everybody toward everybody and they cannot establish a right of everybody toward everybody.

Perfect/Imperfect Duties

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ICESCR Optional Protocol

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What is true for each human individual is also true for human organizations and especially for states. The resources of states are also restricted and also serve other aims in accordance with the policy of the state in question. Therefore, there cannot be a social right toward the state solely from the codified catalogue of social human rights. The UDHR recognizes this fact in the wording of Article 22: it does not guarantee a subjective right to the establishment of social institutions, but provides that such depends on the resources and that the concurring political aims of the state in question will determine whether and to what extent social institutions should be and can be ­established. Therefore, it would be much clearer if we would not speak about social human rights but only about policy objectives to which the contracting states have committed themselves to achieve. The codified so-called social human rights do not establish actual subjective rights, but soft international obligations of the contracting parties which subject themselves to the criticism of the international community and to the need of justification of their social politics toward the control bodies which are established by the international codifications in question. Considering that there cannot be a real social right to access to social institutions when such institutions do not exist, it seems to be surprising that the General Assembly of the United Nations adopted on the 10 December 2008 an Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights of 1966 according to which individuals are entitled to file a complaint against their national state in front of the UN Committee on Economic, Social, and Cultural Rights if they can allege violations of their rights under the International Covenant. The Protocol has so far been signed by 26 states and ratified by 22 states. Germany is thus far not a signatory. The introduction of an individual complaint seems to imply that a violation of social rights can be possible and even that social rights really exist. Fortunately, there is case law of the Committee available and this case law shows that the complaints do not refer to a lack of social institutions. They refer rather to particular allegations of unlawful exclusion from access to social institutions or discrimination in terms of the benefits of a given social institution. This shows that social human rights can only be in effect if the social institutions are already established and access to them is possible.

291 15.9 · 15.9  The Redundancy of Social Human Rights

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15.9  The Redundancy of Social Human

Rights

In 2011, the ECtHR issued a decision that shows the redundancy of the institutionalized individual complaint according to the above mentioned optional protocol. The case goes as follows. An asylum seeker entered the European Union in Greece and lived there for a while on the streets and without any support. Consequently, he traveled to Belgium and applied there for asylum. The Belgian authorities deported him back to Greece because Greece was, according to the rules of the European Union (Dublin Regulation), responsible for the decision about the asylum application. The asylum seeker filed a complaint against Belgium because the state had sent him to a state where his human rights were in danger. He also filed a complaint against Greece because the country had not protected him. The ECtHR considered a violation of Article 3 ECHR.  Remember that Article 3 ECHR only contains the ban of torture and inhuman and degrading treatment – pure liberal human rights and no social rights. I quote from the judgment:

»» 249. The Court […] considers it necessary to point out

that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home […]. Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living […]. 250. The Court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms. Unlike in the above-cited Müslimcase […], the obligation to provide accommodation and decent material conditions to impoverished asylum-seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Council Directive 2003/9/ EC laying down minimum standards for the reception of asylum-seekers in the member States […]. What the applicant holds against the Greek authorities in this case is that, because of their deliberate actions or omissions, it has been impossible in practice for him to avail himself of these rights and provide for his essential needs. […] 263. In the light of the above and in view of the obligations […] under the Reception Directive […], the Court

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considers that the Greek authorities […] must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living on the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatmenst showing a lack of respect for his dignity […] 264. It follows that, through the fault of the authorities, the applicant has found himself in a situation ­incompatible with Article 3 of the Convention. Accordingly, there has been a violation of that provision.

Here again you can see that social institutions must first be established (accommodation facilities for asylum seekers) or at least the state must be obliged to establish them by positive law (Council Directive 2003/9/EC). Only then does a subjective human right to access come into question because the exclusion of someone in need from a social institution can be considered an inhuman treatment and a violation of classical liberal human rights. ??Do you still remember? 15.1 Why are “social human rights” not really human rights? 15.2 There are serious doubts as to whether the guarantee of labor can be considered a required condition of a dignified life. Why? 15.3 Why is the moral binding power to do something, weaker than the moral binding power to refrain from doing something? 15.4 Can social human rights be replaced by liberal human rights?

15

For the answers, see 7 Chap. 21.  

Reading Recommendations Alexander, Larry/Moore, Michael: Deontological Ethics. In Stanford Encyclopedia of Philosophy, 2012 http://plato.­stanford.­edu/ entries/ethics-deontological/ Frankena, William K.: Ethics. Englewood Cliff 1963, chapter 2 http:// www.­ditext.­com/frankena/e2.­html Kant, Immanuel: Grundlegung zur Metaphysik der Sitten. Riga 1786 English: Foundations of the Metaphysics of Morals, 1786 (translated by Thomas Kingsmill Abbott)  – http://www.­gutenberg.­org/dirs/ etext04/ikfpm10.­txt or: Groundwork for the Metaphysic of Morals

293 Reading Recommendations

(translated by Jonathan Bennett)  – http://www.­earlymoderntexts.­ com/assets/pdfs/kant1785.­pdf Weber, Max: The Protestant Ethic and the Spirit of Capitalism. London  2001 http://www.­d.­umn.­edu/cla/faculty/jhamlin/1095/ The%20Protestant%20Ethic%20and%20the%20Spirit%20of%20 Capitalism.­pdf

Case law ECtHR, judg. of 21/01/2011  – 30696/09 –, “M.S.S. v Belgium and Greece”, HUDOC UN Committee on Economic, Social, and Cultural Rights, Communication No. 001/2013 –, “Rodriguez v Spain”, http://juris.­ ohchr.­org/Search/Details/2095

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Right to Asylum Contents 16.1

The Right to Asylum in International Law – 297

16.2

I s There a Moral Human Right to Global Free Movement? – 300

16.3

Is There a Moral Human Right to Asylum? – 303

16.4

 ight to Asylum for Asylum Seekers Inside the R State Borders – 305

16.5

 he Refoulement Ban in Positive T Asylum Law – 307

16.6

 ight to Asylum for Asylum Seekers Outside R the State Borders – 309 Reading Recommendations – 310

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_16

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Right to Asylum in Human Rights Treaties None of the international human rights treaties contain a human right to asylum. Only the UDHR (Article 14) mentions the right “to seek and to enjoy” asylum. This is meant as the right to apply for protection, but not as a right to be protected.

Principle of Territorial Sovereignty The principle of territorial sovereignty says that states are, in principle, entitled to close their borders and to determine whether and under which conditions a person, who is not citizen of the state in question (alien), may enter the country, may reside there, and may chose the place of residence.

Right to Global Free Movement A required condition for a rational discussion about whether there is a moral human right to asylum is the absence of a universal right to global free movement. Until recently, the validity of the principle of territorial sovereignty was not within dispute. In the 1980s, a philosophical debate begun about a right to global free movement (No Border Approach). Defenders of this approach argue by referring to an alleged human right to global free movement, to the theory of the presumption of equality, and to the Common Property Argument.

Protection Scope of a Possible Human Right to ­Asylum

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In contrast to current positive asylum law, the protection scope of a possible moral human right to asylum only refers to the protection of people who are seriously threatened by a severe violation of human rights or by inhuman living conditions in their country of origin. Mere discrimination is not enough. Importantly, the protection scope does not depend on particular grounds of persecution (e.g., race, religion, sexual orientation, political opinion, etc.) or the fact of a deliberate human activity (persecution).

297 16.1 · 16.1  The Right to Asylum in International Law

Refoulement Ban In the event that refugees are already in the state in question, deportation or extradition (refoulement) to a country where they can expect a severe deprivation of humane living conditions is to be considered a violation of human rights perpetrated by the deporting state. For example, if the refugee can expect torture, then the deportation is a violation of the torture ban; if the refugee can expect murder, then the deportation is a violation of the right to life, etc. The refoulement ban is an integral part to all classical human rights. Therefore, there is no place and no need for a special human right to asylum.

The Duty to Rescue In the event that refugees are still outside of the state in question, it is not possible for a state to violate their human rights by doing something (e.g., deportation). The question is only whether the respective state is required to support refugees outside of its borders by rescuing them. The moral duty to help others who are in need for support is an imperfect duty. In contrast to perfect (strict) duties, imperfect duties cannot relate to corresponding rights, because the range of imperfect duties depends on a discretionary decision of the obligor.

16.1  The Right to Asylum in International

Law

When we are dealing with the question whether there is a human right to asylum, it is first useful to recognize that the catalogue of codified human rights does not contain such a right. Neither the two Human Rights Covenants of 1966 nor the later UN human rights treaties nor the European or American Conventions of Human Right contain such a right. The African Human Rights Convention (Banjul Charter of 27 June 1981) rules that “every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conven-

Human Rights Covenants 1966

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Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries … ..      Fig. 16.1  Article 12 (3) Banjul Charter

Everyone has the right to seek and to enjoy in other countries asylum from persecution. ..      Fig. 16.2  Article 14 (1) UDHR

Persons persecuted on political grounds enjoy the right on asylum. ..      Fig. 16.3  Article 16 (1) GG

tions” (see . Fig. 16.1). Considering that the right to asylum is made dependent on the positive laws of the host countries, we cannot identify a human right to asylum in the African Charter as well. The formulation of the asylum clause in the Banjul Charter, however, is interesting insofar as it is very similar to the wording of the asylum clause in Article 14 UDHR (see . Fig. 16.2). But there is a crucial difference. While the Banjul Charter refers to a right to seek and to obtain asylum, the UDHR refers only to the right to seek and to enjoy asylum. One could think that this difference in wording does not mean a difference in meaning. This guess seems to be confirmed by the wording of Article 16a (1) GG, according to which refugees enjoy the right to asylum (see . Fig. 16.3). According to German case law and doctrine, there is no doubt that “to enjoy” has the meaning of having a right to asylum. But the meaning of to enjoy in Article 14 UDHR is different. The expression “to enjoy” is the result of very intensive discussions among the drafters of the UDHR.  A former draft proposed the wording: “Everyone shall have the right to seek and to be granted asylum from persecution.” In particular, under the influence of the large number of refugees after the Arab-Israeli war in 1948 and with strong support from the Arab states, the British proposal was adopted, replacing “to be granted” with “to enjoy.” The British proposal for the UDHR  

Banjul Charter Article 14 UDHR

 

Article 16a GG

 

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299 16.1 · The Right to Asylum in International Law

Everyone has the right to freedom of movement and residence within the borders of each state. ..      Fig. 16.4  Article 13 (1) UDHR

Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ..      Fig. 16.5  Article 12 (1) ICCPR

­ ursued the aim of avoiding recognizing an obligation of p the states to grant asylum to those who are persecuted. The granting of asylum should be considered as a matter of discretion of the state. Only if the state has granted asylum, can the asylum seeker then enjoy asylum. Here, “to enjoy” means to have opportunity to use a granted status, but not necessarily to have a right to receive that status. In the context of asylum, we must also take notice of Article 13 UDHR, which provides that there is a right to freedom of movement within the borders of each state (see . Fig.  16.4). The wording is obviously vague. What is meant by “within the borders of each state”? It seems that this wording refers to more than just the territory of the state whose nationality someone has or in which someone is living. Thus, everyone regardless of his or her nationality should have the right to move in and to reside in each state. So, a possible reading of Article 13 (1) UDHR suggests that a right to global free movement is recognized. This understanding of Article 13 (1) UDHR, however, is not in accordance with Article 14 (1) UDHR. If there is a right to global free movement, then a right to asylum and even a right to seek and enjoy asylum is simply superfluous. If Article 13 (1) UDHR contains a right to global free movement then Article 14 (1) UDHR loses any meaning. In converting the UDHR into binding law, the UN changed the wording of the right to free movement and deleted the vagueness. According to Article 12 (1) ICCPR, it is clear that there is no right to global free movement, but only a right to movement inside the borders of a state and only for those who are lawfully within the territory of that state (. Fig. 16.5).  

 

Article 13 UDHR

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Refugee Convention

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Within the framework of the negotiations on the ICCPR, the negotiating states had agreed to make the right to asylum a matter of a separate convention. In 1977, a conference was held in Geneva, at which a Convention on the Right to Asylum was to be agreed upon. Nevertheless, the draft did not provide for a substantive right to asylum, but only confirmed the previously recognized rules of international law according to which states are entitled to grant asylum. The attempt by Germany to codify a substantive right to asylum was rejected by the great majority of the states. The conference finally failed because the Eastern Bloc states did not want to take on a state commitment to provide asylum. There is, however, an international law of asylum. But it is established outside of the human rights discourse and outside the framework of human rights conventions. The first Convention on Asylum was agreed to in 1951  in Geneva. This is the Convention relating to the Status of Refugees, shorty named Geneva Refugee Convention (GRC). The Convention defines the notion of a refugee and describes the minimum status that a refugee should enjoy. But the Convention does not contain a substantive right of the refugee to get asylum. Only at the national level are there some state constitutions that contain a substantive right to asylum. The most prominent example is Article 16a GG.  The French and Italian constitutions also contain a substantive right to asylum. In contrast to the German case law and doctrine, in France and Italy, the substantive right to asylum was not recognized when their respective constitutions came into force. It was only later “discovered” by case law. So, the question arises, whether the absence of a right to asylum in the framework of human rights should be considered as a deficiency that must be eliminated. This is the case if there is a moral human right to asylum. This is what we must clarify in the following section. 16.2  Is There a Moral Human Right to Global

Free Movement?

First, we must answer whether there is a human right to global free movement. If there is such a right, states would not have the right to refuse entry of aliens who want to enter their country and reside there. One could then consider whether refusing entry in particular cases is

301 16.2 · Is There a Moral Human Right to Global Free Movement?

legitimate, for example, only where aliens want to enter with a criminal or hostile intention or if they represent a serious danger to the domestic population. In other words, in the case of a right to global free movement, the alien does not bear the burden of justifying its entry, but the state must bear the burden of justifying the exclusion of the alien. Nevertheless, if we accept the right to rejection in certain particular cases, the right to global free movement cannot be considered as a moral human right because moral human rights do not permit any restriction. They are absolute rights or they are not human rights. But I want to propose setting aside this aspect and focusing instead on whether there could be in principle a human right to global free movement. Previously, the territorial sovereignty of the states has not been seen as a philosophical question. In particular, Immanuel Kant, who first reflected the relationship between states and individuals, did not discuss the question of the legitimacy of state borders and territorial sovereignty. He argued only for a right to visit. Foreigners should have the right to stay as guests for a short period of time in a country whose nationality they do not possess. But the idea of a right to permanent residence for foreigners was completely remote to him. Only recently has the legitimacy of territorial sovereignty appeared on the philosophical agenda. So far as I see, the American philosopher Joseph H. Carens (1945 - ) was the first who argued for a universal right to global free movement. Meanwhile, there are many philosophers who argue in favor of open borders. They do not only refer to an alleged human right to global free movement, but also to other approaches. There are three different arguments which Open Border theorists rely on: 55 The right to free global movement as a human right 55 The Egalitarian Approach (theory of the presumption of equality) 55 The Common Property Argument I am neither convinced of the assertion that there is a human right to global free movement nor am I convinced of the Presumption of Equality Approach or of the Common Property Argument. The right to global free movement is obviously not a human right. Here, I can point to what I said in the ninth lesson. It cannot be shown that moving from one place on earth to another place on earth or from one society to

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Presumption of Equality

Common Property Approach

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another society is a required condition for the development or maintenance of personhood. Immanuel Kant never left his birthplace of Königsberg in Eastern Prussia. But I think one can hardly assume that Kant lived under inhuman conditions and was not able to develop and maintain personhood. The Presumption of Equality Approach teaches that human beings must always be treated equally as long as there are no reasons to treat them unequally. Considering that there are no rational grounds for arguing that some people may not enter onto a certain part of the earth’ surface while others are allowed to do so, every human being must have the equal right to enter onto every part of the globe and every country. This argument seems to me to not be convincing because equality is a principle that can be justified only for the members of a cooperating community and refers only to the fair distribution of the burdens and benefits of the cooperation. Outside of such a web of cooperation, there is no reason for equal treatment. This is why we can choose our girlfriend or boyfriend or spouse without offering this position to the rest of mankind and without being obliged to justify our choice toward any other interested man or woman. Even an association or a club determines itself whether and under which conditions people can join. The state can also be considered as an association, and like any other association it distinguishes between members and non-members. The Common Property Approach argues that the planet earth is not the property of a particular society, but rather that it is the common property of the entire mankind. Therefore, there is no reason to prevent some people from entering a certain area on the surface of the earth. This argument is also not convincing. Nevertheless, explaining as much is not yet possible because we have yet to deal with the right to property, which I plan to do in the 17th lesson. So, my argument in the current context is a provisory one. In the 17th lesson, we will see that property is only the name of a certain bundle of positive rights and duties. It is a legal concept and its content is always a matter of legislation or law-making. Property, therefore, is only possible in the framework of a legal system and not beyond such a system. The legal system of a state refers only to property inside that state and tells us nothing about the question of migration. Property on an international level is a matter of international positive law, but not a matter of a universal moral human rights regime.

303 16.3 · Is There a Moral Human Right to Asylum?

16.3  Is There a Moral Human Right

to Asylum?

Only when we agree, or assume for the purposes of philosophical analysis, that there is no right to global free movement and that states are in principle entitled to close their borders and determine whether and under which conditions a foreigner may enter the country, does the question arises whether the territorial sovereignty of the state is limited when it comes to the issue of asylum. But, another question arises first: when does it get to the point of asylum? It is important to understand that current positive asylum law does not provide a clear answer to this question. As you may know, current asylum law of the European Union provides two different statuses for those who are in need of protection, namely the refugee status according to the Convention relating the Status of Refugees of 1951 and the subsidiary protection status according to the EU Asylum Directive. Refugee Status is the more preferable of the two statuses because subsidiary protection status comparatively embraces less rights. The existence of these two statuses shows that current asylum law does not have a clear moral understanding of the conditions under which aliens should be protected. I want to demonstrate this using the following example. An alien who fled to an EU member state because he was threatened with torture in his country of origin can either receive refugee status or subsidiary protection status. Such depends on whether the alien is to be tortured in his country of origin because the persecutors are motivated by hostility towards certain religions, nationalities, political opinions, etc., or because of other rather nonpolitical reasons. In the former case, the alien is ­ granted refugee status; in the latter case, the alien is only granted subsidiary protection status. The privileged refugee status depends on a specific political situation while the lower subsidiary protection status is grated only in order to protect the refugee against a violation of human rights. So, the protection of human rights seems to be of a lower importance than resistance against certain political strategies in the country of origin. If we deliberate over whether there is a human right to asylum, it seems to me to be obvious that the entire existing system of current positive asylum law cannot be philosophically grounded. A human right to asylum only comes

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into consideration if human beings who are not citizens of the state in question seek shelter and protection against serious threats related to severe violations of human rights. The relevant standard must be whether aliens are really in need of protection. They are in need of protection only if they are threatened seriously with a sufficiently severe violation of human rights and if they cannot help themselves. The motivation of the persecutors does not matter. Furthermore, I cannot see that persecution as such, i.e., targeted aggressive behavior of humans against other humans, should be considered relevant. It is only a matter of whether a person is actually threatened with a deprivation of goods that are protected by human rights, and not whether this violation is caused by the targeted and deliberate treatment of the persecutors. Even situations where persons are injured without being a target of deliberative persecution are to be considered relevant. For example, in those circumstances where civilians find themselves caught in armed conflict. They are not targets of the fighting parties, but they may nevertheless be the ones who are killed and injured by them. Furthermore, it seems to me to not be relevant whether the deprivation of human living conditions is caused by a violation of human rights at all. Even in cases where the need for protection is caused by a natural disaster or by a lack of appropriate social infrastructure like a health system in the country of origin, the question arises whether there is a serious need for protection. Nevertheless, from the fact that aliens are in a situation where they are in a serious need for protection does not logically follow a duty to render aid and to give any support. The pure fact that people flee from inhuman ­conditions of life does not establish a duty to render aid. We need additional arguments in order to show whether and when such duties arise. This is the core of the question for a human right to asylum. The answer depends on whether the refugees are already staying in the potential host country or whether they are staying outside the borders of the respective state. So, we have to distinguish between two different situations: 1. The situation of asylum seekers who have already entered the country legally or illegally. 2. The situation of those who are either in the country of origin or outside the home-country but not inside the state in question.

305 16.4 · Right to Asylum for Asylum Seekers Inside the State Borders

16.4  Right to Asylum for Asylum Seekers

Inside the State Borders

Let us first look at the situation of those asylum seekers that are already within the country of protection or that have reached the border of that country. Is there a human obligation to grant them asylum that corresponds with a human right to asylum of the asylum seekers? In order to find an answer to this question, it is useful to ask what would happen if there weren’t such a duty. Here, we assume, of course, that the asylum seeker does not enjoy the right to stay on another legal basis. We also assume that he cannot enjoy protection and security in any other third country. In this case, we would have to conclude that the foreigner is illegally within the host country and is therefore required to leave the country. If he does not voluntarily comply with this obligation, he will be deported to the state of his nationality. This is the state from which he escaped because he was threatened with serious damage to one or more essential goods which are protected by human rights. The moral question here is whether the state is morally obliged to refrain from doing something, namely deporting the individual back to the country of origin. We may recall from the last lesson that moral duties to refrain from acting in a certain way are always strict duties while moral duties to act in a certain way can only be considered as imperfect duties because they depend on a certain exercise of the scope of discretion by the obligor. Because of this scope of discretion, there cannot be a corresponding moral right. In contrast, the moral duty to refrain from doing something can correspond to a moral right. It follows that a subjective right to asylum is only conceivable if there is a corresponding duty to refrain from doing something, namely to refrain from deporting the asylum seeker. The question is now the following: What is the moral basis for a duty to refrain from deporting an asylum seeker? Deportation as such consists only in the organizing of travel from country A to country B.  In terms of human rights, deportation is therefore morally indifferent. But in the case of an asylum seeker, the question arises whether we have to take into account the consequences of the deportation or whether it is sufficient to take only the isolated act of deportation into account. Let us take the case that the alien, when deported to the country of origin, is exposed to maltreatment within the meaning of Article 3

Correspondence of Duties and Rights

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ECHR.  According to the ECHR, contracting states are not allowed to maltreat persons. But, the deporting state is not the entity which is maltreating the person in question. Its action consists only in the act of deportation, not in the act of maltreating. The expected maltreatment will be done by agents in the country of origin, for whose behavior the deporting state is not responsible because it has no control over them. Nevertheless, it can be shown that the deporting state is morally responsible for maltreatment that occurs in the target state of the deportation. The moral concept of responsibility is reflected in the legal concept of responsibility. To be sure, the legal concept of responsibility is constructed slightly different in criminal law and civil law. But, both the criminal and civil law constructions clearly lead here to a legal responsibility and thus also to a moral responsibility. According to the prevailing opinion in German penal law, an agent is responsible for a certain result if the result is caused by the action, i.e., if the action is to be considered the conditio sine qua non of the result and if the agent acted either intentionally or negligently. An agent acts intentionally where the result of his actions is known and desired by the agent. The result is desired not only if it is the specific objective of the action, but also if the agent acts deliberately without any regard for the consequences of his actions. Negligence is a failure to exercise ­reasonable care when acting, by taking into account the potential harm that the action might foreseeably cause to other people. Without any doubt, the deportation is the conditio sine qua non of the maltreatment because without the deportation the maltreatment could not happen. The deporting state can be accused of acting intentionally when it expects that the maltreatment will occur despite not wishing it to so. Similarly, even if the deporting state does not expect the maltreatment, it is responsible if it acts negligently by ignoring the foreseeability of the maltreatment. So, if there is sufficient knowledge available that the alien will be exposed to maltreatment when deported to the country of origin, the deporting state is responsible for the maltreatment. The deporting state, therefore, commits an act of maltreatment through the deportation. We find the same result if we apply the concept of responsibility as provided in civil law, in particular, the law of tort. The difference here is that the concept of causality

307 16.5 · 16.5  The Refoulement Ban in Positive Asylum Law

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is understood differently. An action is not to be considered as a cause of a certain result if, according to the experience of life, it is rather unlikely that the result will happen. In our case, the result of maltreatment is, however, very likely and therefore the responsibility of the deporting state for the maltreatment cannot be denied. Saying that the deporting state is responsible for the maltreatment is saying that the deporting state itself commits the maltreatment. The act of deportation is as such an act of maltreatment. The maltreatment, therefore, is a severe violation of basic human rights (Article 3 ECHR). 16.5  The Refoulement Ban in Positive

Asylum Law

The result of our analysis confirms partly the legal provisions as well as the legal doctrine of non-refoulement under which persons who are threatened with a violation of basic human rights in their home-country may not be deported to that country. A closer look to the codifications in question, however, shows that these provisions can be criticized by means of philosophical analysis. The non-refoulement provision of Article 33 GRC contains in paragraph one a refoulement ban of limited application (see . Fig. 16.6). It only applies to those who are threatened by an human activity (persecution) and not to those who are threatened by inhuman living conditions. Furthermore it applies only to those who are persecuted on account of particular persecution grounds. The restriction of the protection by these persecution grounds can 

(1) No Contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. ..      Fig. 16.6  Article 33 Geneva Refugee Convention

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Convention Against Torture

not be justified as we have seen above. Furthermore, paragraph two shows that the refoulement ban cannot be applied to those who committed a severe crime despite the fact that even criminals are bearers of human rights and may not have such rights violated. The non-refoulement rule in the Convention against Torture of 1984 (CAT) can also be criticized by means of philosophy. Article 3 contains a clear and unconditioned refoulement ban in the case of threatening torture (cruel treatment for specific purposes), but not in the case of threatening cruel treatment without specific purposes, although such maltreatment, like torture, is a severe violation of basic human rights (see . Fig. 16.7). The philosophical requirements concerning the refoulement ban are best met by the case law of the ECtHR. Beginning with its judgement of 1989 in the case Soering v. UK, the Court decided that the refoulement ban is an inherent element of the human rights of the ECHR. Unfortunately, the Court did not make sufficiently clear that this doctrine is applicable to all human rights of the ECHR. This is why it is a widely held opinion that the refoulement ban is only an integral part of Article 3 ECHR.  But this conclusion is not convincing. The case law of the ECtHR is only convincing if it is based on the major premise that the refoulement ban is integral part of all the human rights of the Convention. From this premise follows that it is also part of Article 3. The refoulement ban must be considered an integral part of each human right. Accepting the duties that follow from these rights means accepting the refoulement ban. From the result of our considerations follows an important consequence. Considering that the refoulement ban is an integral part of each human right, there is no need and no space for a specific human right to asylum. The talk about a human right to asylum, when it refers to asylum seekers who are already inside the country of possible ­protection, is redundant talk. So, the result of our analysis so far is that there is no specific human right to asylum, but  

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No state Party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. ..      Fig. 16.7  Article 3 (1) CAT

309 16.6 · Right to Asylum for Asylum Seekers Outside the State…

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that asylum seekers inside the country of possible protection are sufficiently protected by the framework of all the other classical human rights. This is the case because the refoulement ban is an integral element of every human right. 16.6  Right to Asylum for Asylum Seekers

Outside the State Borders

Now we come to the case of refugees who still have not reached the territory of the state of possible protection and are still in the country where they are in danger or where they are already outside the country of origin somewhere in the desert or on the high seas. In both cases, we assume that support and security cannot be delivered by other states because we assume that other states are either not able or not willing to render aid at the place where people in need are staying. Now we ask whether the refugees have a human right to asylum that can exercised toward the state in question. In this case, the question is not whether there is a duty to refrain from doing something. Rather, the appropriate question is whether there is a duty to do something – to rescue the refugees, to take them under protection, and to bring them into a territory where they are safe. Similarly, in the absence of other possibilities, the question is whether they are to be brought to the territory of the state in question. As we have seen in the 15th lesson, the moral qualification of the duty to do something is different from the qualification of the duty to refrain from doing something. The moral duty to refrain from doing something can be considered as a strict or perfect duty. Therefore, it is possible to relate it to a corresponding right. The holder of the right is entitled to demand the fulfillment of the perfect duty toward the bearer of the duty. In contrast, the moral duty to do something cannot be considered as a strict or perfect duty. Instead, it is an imperfect duty because the range of the duty depends on certain decisions of the obligor. The obligor is only obliged to help if his efforts can be considered as reasonable. Although it is possible to conclude that some decisions of the obligor cannot be considered as acceptable because the burden that he is willing to take on is either too small or too large, even between these two extremes, there is a wide range of possible decisions that fall within the scope of discretion of the possible obligor. Therefore, we cannot say that there is a

Distinction Between Doing and Omitting

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strict duty to rescue and to protect and a corresponding right to rescue and protection. There is only an imperfect duty. It belongs to the characteristic of imperfect duties which do not correspond to rights. Therefore, in such cases, there is no human right to asylum. If at all, there can only be a right that refers to the duty to responsible decision making and to a fair process of balancing. A fair balancing process must, on the one hand, take account of the seriousness of the need and, on the other hand, the resources which a state has. Rich states are therefore generally obliged to provide greater aid than poorer states. But in any case, it is hard to see that people in need anywhere in the world have a moral right based on a justification of the decision making process that may be exercised toward a particular state. No one can claim that a particular state violates duties that it has towards particular persons. A final remark should be made. The moral status of a refugee towards a state does not depend on the formal line of the border. It depends rather on the effective power and control of the respective state. If a state is able to effectively protect refugees outside of its formal borders, then we have to conclude that these refugees are residing “inside the country.” ??Do you still remember? 16.1 Is there a codified human right to asylum on the international level? 16.2 What is meant by “refoulement ban” in the context of a philosophical analysis of human rights? 16.3 Is there a moral human right to asylum related to refugees inside the potential host state? Justify your opinion. 16.4 Is there a moral human right to asylum related to refugees outside the borders of the host state? Justify your opinion.

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For the answers, see 7 Chap. 21.  

Reading Recommendations Carens, Joseph H.: Aliens and Citizens. The Case for Open Borders. In The Review of Politics 49 (1987), 251–273 Carens, Joseph H.: The Ethics of Immigration. Oxford 2013 Kant, Immanuel: Zum Ewigen Frieden. Ein philosophischer Entwurf. Königsberg 1795, 2nd ed. 1796 (English: Perpetual Peace: A Philosophical Sketch)

311 Reading Recommendations

Lambert, Hélène / Messineo, Francesco / Tiedemann, Paul: Comparative Perspectives of Constitutional Asylum in France, Italy, and Germany. In: Refugee Survey Quarerly (RSQ) 27 (2008) pp. 16 Rodrigues Simao, Jorge: Article 14 of the Universal Declaration of Human Rights. https://www.­linkedin.­com/pulse/20141125090354241662330-article-14-of-the-universal-declaration-of-humanrights Tiedemann, Paul: The No-Border-Postulate (Working paper I), 2018, https://ssrn.­com/abstract=3281100 Tiedemann, Paul: Moral Duties toward Refugees (Working paper II), 2018, https://ssrn.­com/abstract=3281634 Tugendhat, Ernst: The Moral Dilemma in the Rescue of Refugees. In: Social Research 62 (1995), 129–142

Case Law ECtHR, judgment of 07/07/1989 – 14038/88 –, Soering v UK, HUDOC

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The Right to Property – 315

17.2

Philosophical Conceptions of Property – 318

17.3

Collective Human Rights – 324 Reading Recommendations – 328

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The Meaning of Property Property is the collective name for the bundle of rights (and duties) that the owner of the property holds with respect to material things (mobile or immobile) or ideas (intellectual property). In a wider sense, it is possible to hold property also in entitlements. The bundle of rights that constitute property can be defined differently. It typically embraces certain rights or at least some of them.

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Occupation Theory (Plato): Property is constituted by occupation and the factual respect of that act by fellow humans. This argument suffers from a naturalistic fallacy. Labor Theory (Locke): There is a natural right to property in one’s own body. Thus, a person is also owner of the actions committed by their body. Thus, a person is also owner of the objects that are made by their own actions. This argument suffers (1) from a specific pitfall of the English language that uses the same expression (property) for attribute as well as for belonging and tends to confuse the different meanings of these two concepts. It further suffers from a quaternio terminorum because it confuses two different meanings of the pronoun “my.” It is important to distinguish “my” as an identity pronoun from “my” as a possessive pronoun. Positivistic Status Theory (Hume): Property refers to a legal status. A status is a bundle of rights and duties. The bundle is defined by positive law. So, it is up to the legislator to introduce or to abolish property in certain entities and to establish rules concerning the distribution of property. Example for the abolishment of property: The Nuclear Power Exit judgment of the Federal Constitutional Court. Considering that there is no need for property rights in order to protect personhood, property rights cannot be considered human rights. There is a need for a subsistence minimum, but not for property.

315 17.1 · The Right to Property

Collective Human Rights According to Karel Vašák, there are three generations of human rights. The first generation embraces the classical or the so-called liberal human rights. The second generation embraces the social human rights. The third generation embraces the human rights of collectives (tribes, language-­minorities, etc.) Collective rights are rights held by a group, but not by the particular members of a group. Collectives as such are not endowed with reason and conscience. They are not persons in a natural sense. Therefore, collective rights cannot be considered human rights. The alleged equal status of human rights and collective rights can lead to conflicts which can only be resolved by a relativization of human rights. This is contrary to the absolute character of human rights. The function of human rights is to protect the individual from its total absorption by collectives.

17.1

The Right to Property

As I mentioned several times before, the codifications of human rights contain not only rights that can be considered as human rights because they can be derived from the principle of human dignity. The codifications contain also some rights that cannot be considered human rights. Some of them are purely ideologically based. The desire to label them as human rights serves only for the purpose of persuading people to accept them despite the fact that any justification for them stands on feet of clay. In the 15th lesson, I mentioned the so-called human right to labor. Other examples include the habeas corpus rights, which are only procedural rights. They are supposed to protect the freedom of action but not personhood, i.e., the freedom of will. In this lesson, I want to deal with two more examples. The first one deserves particular attention because it belongs to the classical stock of almost every human rights codification since the beginning of the history of codifica-

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tion. It also belongs to the stock of those alleged human rights which have been a focus of philosophical deliberation since the beginning of philosophical deliberation about human rights. This is the right to property. The other example refers to a relatively new development in the history of human rights. This is the right to what we can call collective identity. The right to property is mentioned in the Virginia Bill of Rights of 1776 as well as in the French Declaration of the Right of Man and Citizen of 1789. It is also mentioned in the UDHR of 1948 (see . Fig.  17.1). But Article 17 (2) UDHR offers the idea that a person can be deprived of property under certain circumstances. The clause, however, does not set out the circumstances under which such deprivation can occur. It only indicates that the deprivation cannot be arbitrary. So, this clause can be applied on the basis of any reason so long as the method is not arbitrary. This leads to uncertainty as to whether the drafters of the UDHR intended the right to property to be a human right. Still more interesting is the fact that neither the ICCPR nor the ICESCR mention the right to property. The ECHR of 1950 did not mention the right to property either. Nevertheless, it was introduced in the 1st Additional Protocol of 1952 (see . Fig. 17.2). When the Convention was being drafted, it was generally agreed among the negotiating parties that a right to property should be inserted into the text of the convention. Nevertheless, they failed to reach an agreement on the  

 

1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property. ..      Fig. 17.1  Article 17 UDHR

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Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ..      Fig. 17.2  Article 1 ECHR 1st Add. Protocol

317 17.1 · The Right to Property

details of the formulation. Therefore, this right was added afterwards. It is important to note that this right stands under the reservation of public interest. This is obviously the opposite of a human right. A human right under the reservation of public interest is simply a contradiction in itself. So, we must ask whether the codified wording of the right to property fails because it does not take into account the specific character of a human right, or whether the codification is at all appropriate because the right to property is not really a human right. Before we can clarify the specific character of the right to property, regardless of whether we consider it a human right, we must first ask what property actually is. In contrast to things like life, ideas, bodily or mental integrity, associations, and assemblies, the term property does not refer to something that exists in the material world and that can be made a subject of moral or juridical protection. Property does not refer to an extra-juridical reality, but rather only to the world of law. It is a judicial concept. It denotes a bundle of rights and duties that, for their part, relate primarily to objects of the material world or to ideas (intellectual property). According to a still wider framed concept of property, the bundle of rights and duties cannot only refer to things in the material world, but also to certain legal positions. German law, for instance, considers as objects of property the future pension benefit entitlements that employees have earned in return for their services or in return for the regular payment of insurance premiums. Regarding the content of the property rights, we can at least distinguish among the following: 55 the right to exclusive possession, 55 the right to exclusive use, 55 the right to exclusive disposal (about who may use it), 55 the right to exclusive enjoyment of the fruits, 55 the right to consumption and destruction, 55 the right to modification, 55 the right to transfer the property to others, 55 the right to bequeathing property, 55 the right to inherit the property of someone who passed away, 55 the right to protection against expropriation without compensation, and 55 the right to adverse possession (the right to occupy free objects with the intention of possessing them as one’s own).

The Meaning of Property

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This is only a catalogue of typical property rights. Which of them and to what extent they are really part of the property order of a certain country depends on the respective positive law. Regarding the content of the duties of property, there is a wide range of different rules in the different property orders of different states as well: 55 Sometimes there are no duties connected with property. The owner can do with his items of property whatever he or she wants to do. 55 Sometimes there are specific duties for owners of property, e.g., the duty to pay a specific tax as a land owner. 55 In some cases, there are general rules concerning duties of property owners. (see below Article 14 (2) GG). Regarding the subjects to whom property can be assigned, there is also a wide range of different rules. Sometimes every natural person is entitled to hold property. Sometimes only a certain group of individuals are entitled to hold property (landlords, nobility, only adults, only males). Sometimes associations and organizations can hold property, sometimes not. Sometimes only the state or public authorities are entitled to hold property in certain things (e.g., property in war weapons). The wide range of different property orders might suggest that we are dealing with an item governed solely by positive law. Nevertheless, it could also be the case that there is a hard core of property rights that is anchored in the morality of human rights. In order to find that out, we can ask whether there are profound philosophical argumentations in favor of the idea that property rights are embedded in a conception of human rights.

17.2 Plato

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Philosophical Conceptions of Property

The most traditional philosophical theory of property is called the occupation theory. It was initially advocated by Plato and remained the sole or at least most prevailing theory until John Locke. According to this theory, property is based on occupation and the power to defend it against those who do not want to accept it. This idea underlies the story of the foundation of Rome by Romulus. He drew a line around a field and declared to his brother Remus that this was the district of the new founded

319 17.2 · Philosophical Conceptions of Property

city of Rome and that everybody who crossed the line without permission would be killed. Remus jumped over the line and he was immediately killed by his brother Romulus. The Romans shared the opinion that this story can be considered a sufficient ground for the legitimacy of their property in the city of Rome. Nevertheless, the occupation theory of property suffers from severe logical mistake. It is based on what we call a violation of Hume’s law or a naturalistic fallacy. As you already know, naturalistic fallacy consists of the deriving a norm from a fact or moving from be to ought. You may remember that David Hume and Immanuel Kant have shown that such a conclusion is logically invalid (see the second lesson). In the case of the occupation theory of property, such a false conclusion takes place. The act of occupation as well as the fact of the power to defend it does not lead to a right that describes why someone is entitled to exclusive use of the items while others are not. The most sophisticated reasoning in favor of the idea that the right to property should be regarded as a human right stems from John Locke. It is called the labor theory of property. In his Second Treatise of Government, he developed the following argumentation. Every human person has an exclusive right to herself. She is therefore the owner of her body as well as of her consciousness or her abilities. She is, in particular, the owner of her own free will and therefore the owner of all actions and omissions that are based on her own free will. According to Locke, from this follows that the person is also the “owner of her labor,” because labor is a kind of action that is based on a person’s free will and is therefore to be considered her labor. Considering that she is the owner of her labor, she is also the owner of the results of her labor. I will call these results artifacts. So, from my body, my actions, and my work follows my artifacts. Whatever a person takes out from nature and mixes up with her work, becomes her property. Property is therefore a relationship between the person and the items that she created, including the raw material from which the items are created. Artifacts that she has made or created are part of her person. In other words, property is a relationship between an item and a person. Property makes any item to a contingent attribute of a person. Locke’s theory of property is an excellent example for the fact that our kind of thinking is strongly influenced by

John Locke

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Two Pitfalls of Language

Quaternio Terminorum

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our kind of talking. If our language is not appropriate, then there is a huge risk to develop false ideas. This becomes very clear in this case because Locke’s theory is obviously the result of two pitfalls of language. The first pitfall is specific for the English language. I think this is a sufficient explanation for the fact that Locke’s idea is still prominent in the English speaking world. I think of the double meaning of the English word “property.” Property means “attribute” (German: Eigenschaft) as well as “belonging” (German: Eigentum). This double meaning can easily lead to a confusion of thinking. Nevertheless, this is not the only one pitfall of language that seems to justify Locke’s idea. The other pitfall appears in the double meaning of the pronoun “my.” In the English language as well as many other IndoGermanic languages, this pronoun is either a possessive pronoun that marks something as a belonging of the speaker or a pronoun of identity that characterizes something as consisting of certain elements. To elaborate, there is a categorical difference between “my action” and “my hammer.” My hammer is something that can also be used by others. My action cannot be done by others. Others can perform a similar action but this action is not my action. This shows that the word “my” in my action functions as an identity pronoun while in my hammer it functions as a possessive pronoun. If you confuse both meanings, then you may wrongly come to think that the hammer is part of my identity. Accordingly, it would be true to say, “I am not only a person. I am also a hammer.” Or, “being a hammer is part of my personality.” This is obviously nonsense. In Locke’s argumentation, the word “my” is used in different meanings. His argumentation, therefore, falls within the scope of a logical fallacy that is traditionally called quaternio terminorum fallacy (quadrupling of terms). A well designed logical syllogism makes use of three terms. In the case of a quaternio terminorum, we have a syllogism with four terms. This makes the syllogism a fallacy. The falsity of the conclusion is hidden by the fact that two different concepts are expressed with one and the same word. Locke’s syllogism is the following:

»» Premise 1: action x is my action (my = identity pronoun)

Premise 2: Product y is the result of my action x Conclusion: Product y is my product (my  =  possessive ­pronoun)

321 17.2 · Philosophical Conceptions of Property

Here we have not only three but four terms:

»» Term 1 = action x

Term 2 = is mine (identity pronoun) Term 3 = result y Term 4 = is mine (possessive pronoun)

So, we must conclude that Locke’s argumentation in favor of the thesis that there is a human right to property is not convincing. It is based on incorrect thinking. The modern positivistic theory of property goes back to David Hume (1711–1776). He regarded property simply as a matter of legislation. Accordingly, it is up to positive law to define the scope of objects to which property rights can be assigned. Secondly, it is up to positive law to define the subjects who can own property rights. Thirdly, it is a question of positive law to determine how property rights can be acquired. Fourthly, there is positive legislation concerning the determination of those rights that define the content of the property rights. The term “property” is only a pure legal term. It is only a term that summarizes the bundle of certain single positive rights and provisions. Should we follow Hume? The crucial question that we must ask is the following. Is property a required condition for the development and maintenance of personhood? If we answer this question in the affirmative, then must consider the right to property a human right. Answering otherwise leads to the opposite conclusion. It is indeed necessary to have access to the material means of life and private property can ensure this access. But it is also possible to have access to the means of life without having private or public property. Think of the monks and nuns who life in a monastery or the Saduhs in India. They do not hold private property but their means of life are ensured. Property gives, of course, more power to the owner and enlarges his scope of freedom. But this freedom refers only to the freedom of action and not necessarily to the freedom of will. But only freedom of will is necessary for the development and maintenance of personhood. Nevertheless, it is important to understand that property rights are not to be confused with the subsistence minimum. The latter refers to the conditions of freedom of will and are therefore to be considered a matter of human rights. The former refers only to freedom of action. The concept of property refers not only to the ownership

David Hume

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of the means of the subsistence minimum, but also to the fortune of a billionaire. So, we come to the conclusion that the right to property cannot be considered a human right. The fact that this right nevertheless appears in almost every classical human rights codification shows the strong influence of the wealthy part of the national or international society when it comes to the codification of human rights. It also shows how the idea of human rights can be misused and is misused in order to push forward selective or selfish interests by dressing them in the royal garb of human rights. The pure positive sense of property is clearly expressed in Article 14 (1) GG (see . Fig.  17.3). The content and limits of property are a matter of definition by positive laws. It follows that property can only exist in the frame of a given legal order. There is no natural or human right on property. The legal order decides in which items property can be acquired, who can acquire property, and the range of rights and duties that are connected with property. Furthermore, it is also possible to change the property order by providing that it is no longer possible to acquire or to hold property of a certain kind. Such a change to the property order occurred in Germany with regard to the property of nuclear power plants. By the 13th Act Concerning the Modification of the Atomic Act of 31 July 2011, it was ruled that the construction of new nuclear power plants is prohibited. The exist 

(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. (2) Property entails obligations. Its use shall also serve the public good.

17

(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts. ..      Fig. 17.3  Article 14 GG

323 17.2 · Philosophical Conceptions of Property

ing nuclear power plants in Germany were also to be turned off according to a particular time schedule. The last plant is to be turned off in 2022. Three companies operating nuclear power plants filed a complaint against this law with the Federal Constitutional Court. They argued that the law constitutes an expropriation without compensation (see Article 14 (3) GG). In its judgment of 6 December 2016, the Court decided that the final exit from nuclear power energy in Germany is not to be considered an expropriation, but only a new definition to the content of property according to Article 14 (1) sentence 2 GG. An expropriation occurs only if the object of property is deprived from a certain owner and transferred to a new owner. In this case, the property rights still exist. There is only a change in the ownership. In contrast, the law concerning the legal exit from nuclear power does not regulate the transfer of the ownership in nuclear power plants from one owner to another. It rather modifies the definition of property. It tells us that property in nuclear power plants does not exist anymore. Nobody in the country, including the state, can be an owner of nuclear power plants in future. Property rights in nuclear power plants will not exist just as property rights in the oxygen in the air around us do not exist. Property in nuclear power plants will, so to say, pass away simply by a new legal definition. The Court nevertheless recognized a right of the companies in question to a certain amount of compensation. But this compensation is not based on expropriation, but rather only on basis of the disappointment of expectations. In order to understand this, it is necessary to know that in 2001 the German Parliament issued a law according to which the production of a certain amount of nuclear energy has been guaranteed to the companies. After the exhaustion of these amounts, the production of nuclear energy should be ceased. Furthermore, in a law of 2010 the guaranteed amounts were enlarged. With the expectation of being able to enjoy the property of nuclear power plants for a while, the companies made some investments to modernize the plants. The abrupt halt to the production of nuclear power per the law of 2011 led to a disappointment of that expectation and to a devaluation of the investments. Only this devaluation was to be compensated. The legal principle behind this case law is not the principle of property, but only the principle of protection of legitimate expectations.

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17.3

17

Collective Human Rights

Now we come to the second important example of fake human rights. It is about the so-called human rights of the third generation. This expression goes back to Karel Vašák. Vašák (1929–2015) was born in the former Czechoslovakia. He was a contributor to the drafting of the Universal Declaration of Human Rights. From 1969 to 1980, he worked for the Council of Europe before becoming the first Secretary General of the International Institute of Human Rights in Strasbourg. He invented the notion of three “generations” of human rights, inspired by the three themes of the French Revolution (liberty, equality, and brotherhood). He used this notion for the first time in an article that appeared in 1977. According to this idea, the history of human rights appears in three steps of enforcement. The first step refers to the so-called liberal human rights. These are those right with which I have dealt with in the lessons eight through 14 and 16. They are characterized by the fact that they are pure rights of defense and protection against attacks that aim to harm a given state of human living conditions. The second step refers to the so-called social human rights that I have dealt with in lesson 15. They are characterized by the fact that they confer the right to demand the security of a certain state of humane living conditions or at least to demand support for the establishment of this state. According to Vašák, there is now a third generation of human rights that consists in particular of the so-called collective rights. Collective rights are considered rights held by a group as a group rather than by its particular members; in contrast, liberal and social rights are considered individual rights that are held by individual persons. It is important to understand that the phenomenon of discrimination because of a certain group membership is covered by liberal and social rights. For example, if someone is tortured while in prison because he is member of a certain tribe whereas other inmates who do not belong to that group are not tortured, then this is simply a matter of the individual right to freedom from torture. It has nothing to do with group-related rights. The group-related rights also do not refer to so-called affirmative actions which aim to delete inequality between members of different groups. An important example is the so-called ­women’s quota in the law of employment in several states. According

325 17.3 · Collective Human Rights

to these provisions, in a situation of two equally qualified candidates for a certain job, one male and the other female, the employer must choose the female candidate as long as women in jobs of the same position are underrepresented as compared to men. This is also not a case of grouprights because the right of the women to be favored is an individual right of each individual woman in the position of a job applicant. A group-related right is also not codified in Article 27 ICCPR, which provides that persons who belong to minority groups shall not be denied the right to enjoy their own culture, to profess and practice their own religion, or to use their own language in community with other members of their group (see . Fig. 17.4). It is clear from the wording that this provision relates to individual human rights. The right “in community with others to enjoy their own culture” simply refers to the human right to assembly and the human right to association. The right to profess and practice religion obviously refers to the right to freedom of religion. Only the right to use one’s own language seems to be a right that is not identical to any other human right. Nevertheless, there is a dispute concerning whether there is a moral human right to one’s own mother tongue. I will not discuss whether the right to free usage of language is to be considered a human right. In our present context, it is enough to show that this right is in any case an individual right of individual persons and not a group-­related right. On the level of global international human rights law, we have indeed no codification of collective human rights. Only one document could be understood as an introduction of collective rights. But this is only a document of soft law. It is the Resolution 47/135 of the UN General Assembly of Dec 18, 1992 on the rights of persons belonging to national or ethnic, religious, and linguistic minorities (see . Fig.  17.5). Most articles of this declaration relate either to individual rights of group members or to  

 

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. ..      Fig. 17.4  Article 27 ICCPR

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States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. ..      Fig. 17.5  Article 1 (1) UN Resolution 47/135

general duties of the states. Only Article 1 could be read as establishing an original group right. According to this Article, states are obliged to protect not only particular members of a group, but also the existence and national or ethnic, cultural, religious, and linguistic identity of minorities as such. This could be understood as a group-related right to collective identity. On the level of regional human rights law, we have two conventions in Europe that refer to the rights of minorities. These are the European Charter for Regional or Minority Languages of 5 November 1992 and the Framework Convention for the Protection of National Minorities of 1 February 1995. Both of them do not contain group rights. They protect only the rights of “persons belonging to minorities” or they issue duties of the contracting states  – for example, the duty of administrative authorities to use the regional or minority languages. Nevertheless, there is an example for the codification of group-­rights in the African parallel to the ECHR, the Banjul Charter of Human and Peoples’ Rights. This Charter already shows in its official name that collective rights (rights of peoples) and human rights (rights of human individuals) are considered as being on the same level. This is confirmed in Article 22 (1) of the Charter according to which peoples as such – as opposed to individuals – have the right to their economic, social, and cultural development (see . Fig. 17.6). The Banjul Charter regards individual human rights as well as collective rights of the peoples as rights of the same sort. It therefore allows for the possibility of conflicts between individual and collective rights, which cannot be resolved by reference to some ranking of the two or a general preference for individual human rights. In contrary, the Charter leaves open which rights are to be favored in such a conflict. I want to demonstrate this problem using an example from Canada that I have found in the work of Rhoda  

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327 17.3 · Collective Human Rights

Article 22 (1) Banjul Charter on Human and Peoples’ Rights All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. ..      Fig. 17.6  Article 22 (1) Banjul Charter

E. Howard. According to Canadian law, everybody enjoys the so-called liberal human rights. Nevertheless, according to the Canadian law, the collective identity of the Indian tribes are also protected. Howard explains the following case. According to the Indian culture and worldview, which is constituent for their collective identity, there is a sacramental connection between the human body and the natural order. The natural order is considered not only as a matter of facts, but also as being part of a normative order. (We called this kind of thinking the Aristotelian approach, see lesson two). Certain human behavior can disturb the natural order. It is possible, however, to recover the natural order by infringing the body of a human being. So, what we would consider torture is in the worldview of the Indian tribes considered a valuable sacrifice for the benefit of the entire tribe. Now the question is: should the state tolerate torture if it is committed in the frame of such a collective identity? Should the state intervene where an Indian individual that is to be tortured on such grounds has escaped from the tribe to apply for protection? Or is it necessary to extradite that person to the authorities of the tribe in order to respect the collective identity of the tribe? It is obvious that not every aspect of a conceivable collective identity is in a conflict with human rights. But the example nevertheless shows that collective rights cannot be categorically considered as human rights. The idea of human rights is to protect the individual against its total absorption by the collective. Individual human rights defend individual positions against the expectations and claims of the collective. There is therefore a fundamental and principal contradiction between human rights and collective rights. Furthermore, human rights are derived from human dignity and human dignity refers to the absolute value of

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personhood. The collective is not endowed with reason and conscience. Therefore, it is not endowed with personhood. Instead, collectives are pure ideas in our brains, intellectual or emotional constructions. They can never replace the position of individual persons that is based on human dignity. This shows that collective human rights do not exist. There is no third generation of human rights. ??Do you still remember? 17.1. What is property? 17.2. The argumentation of John Locke in favor of a right to property as a human right suffers from a logical fallacy. What do you know about this fallacy? 17.3. Is the right to property a human right? 17.4. What is the idea behind Karel Vašáks conception of three generations of human rights?

For the answers, see 7 Chap. 21.  

Reading Recommendations

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Bisaz, Corsin: The Concept of Group Rights in International Law. Groups as Contested Right-Holders, Subjects and Legal Persons. Leiden/Boston 2012 Howard, Rhoda E.: Dignity, Community, and Human Rights. In Abdullahi Ahmed An-Na'im (ed.): Human Rights in Cross-­Cultural Perspectives. A Quest of Consensus. Philadelphia (PA) 1991 Jovanović, Miodrag A.: Collective Rights. A Legal Theory. Cambridge (UK) 2012 Locke, John: Second Treatise of Government. 1690, V, 27 Mchangama, Jacob: The Right to Property in Human Rights Law. 2011 https://www.­l ibertarianism.­o rg/publications/essays/right-property-­ global-human-rights-law Mende, Janne: Collective Identity. In Paul Tiedemann (ed.): Right to Identity. ARSP Beiheft 147. Stuttgart 2016 Vašák, Karel: Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights. In: UNESCO Courier 30:11, Paris 1977 Waldron, Jeremy: Property and Ownership. In Stanford Encyclopedia of Philosophy 2004. http://plato.­stanford.­edu/entries/property/ Wininger, Bénédict/Matthias Mahlmann/Sophie Clément/Anne Kühler (eds.), La proprieté et ses limites/Das Eigentum und seine Grenzen. ARSP Beiheft 154, Stuttgart: Franz Steiner 2017

Case Law BVerfG, jud. of 06/12/2016 – 1 BvR 2821/11 et al. –, (“Nuclear-Power-­ Plant-Exit”) English: http://www.­bverfg.­de/e/rs20161206_1bvr282111en.­html

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The Principles of Liberty Contents 18.1

Liberty in Positive Law – 331

18.2

The Content of the Principle of Liberty – 337

18.3

Rules and Principles – 338

18.4

 he Philosophical Foundation of the Principle T of Liberty – 342

18.5

 he Legal Instruments for Taking T Care of Liberty – 343 Reading Recommendations – 347

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_18

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Rights, Rules, and Principles According to Ronald Dworkin, there is a difference between (moral/legal) rules and (moral/legal) principles. Rules describe a certain situation (legal facts) and provide that in a case where this situation occurs, a certain legal consequence should follow. In contrast, principles do not determine the outcome of the case. They only provide arguments that are to balance against the arguments in favor of conflicting principles. According to Robert Alexy, human rights are to be considered principles and not rules. So, Dworkin as well as Alexy do not take the notion “right” in “human rights” seriously.

Human Rights as Genuine Rights Contrary to Dworkin and Alexy, it can be shown (see lesson five through seven) that one can derive genuine rights from the principle of human dignity and not just principles. Therefore, human rights are to be consider rules and not just principles. They protect the conditions of the possibility to create one’s own free will.

Liberty

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The term liberty should be used when it is about the freedom of action and not about freedom of will. Freedom of action refers to the freedom to do and to refrain from doing whatever someone wants to do or to not do. Nevertheless, in order to ensure freedom of action for everybody, it is necessary to unite “the choice of one with the choice of another” (Kant). In other words, the limits of freedom of action of one are located where the freedom of action of the other begins. These limits have to be determined by a rule of a legal authority. From this follows that freedom of action can be guaranteed only under statutory reservations. Philosophically, this is not seen as problematic. For restrictions on the freedom of action do not usually threaten the personhood (except in the extreme cases of total institutions). This is why liberty is not a matter of rights but a moral or legal principle of its own that should be strictly distinguished from human rights.

331 18.1 · Liberty in Positive Law

Liberty as Based on Human Dignity Although freedom of action is not the object of strict rights, there is a connection between freedom of action and human dignity. For respect toward freedom of will also entails to some extent respect toward freedom of action because the will refers to actions. But this relationship is much looser than is the case with human rights.

Principle of Proportionality In order to make sure that the process of balancing between freedom of action of a particular person and conflicting interests and values of other persons is comprehensible and rational, it is necessary to carry out this process in accordance with the principle of proportionality. According to this principle, restrictions on freedom of action are only justified if there is: 1. a legitimate end of the restriction; legitimate ends are the protection of the equal freedom of others and the democratically chosen aims of common cooperation. Morality as such is not to be considered a legitimate end as long as the behavior in question does not infringe the rights and liberty of others. According to the rule of law, restrictions of the freedom of action are only accessible on the basis of generalized and abstract legal statutes; 2. suitability of the means in question; 3. necessity of the means in question; or 4. adequateness of means and ends (not using a sledgehammer to crack a nut).

18.1

Liberty in Positive Law

In order to understand the special character of human rights and to apply human rights in the right manner, it is useful to compare these rights with other important moral elements of a legal order and to distinguish them in a proper way. The human rights discourse suffers very often from an insufficient understanding of the difference between human rights and these other fundamental columns of a free order of society. This is the reason why I

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Liberty in International Human Rights Law

Liberty in National Constitutions

want to talk in this lesson about the principle of liberty. In the next lesson, we will deal with another important element of a free and fair social order, namely the principle of equality. So, let us turn our attention to the principle of liberty. It is interesting to realize that it is not mentioned in the international human rights codifications. Yes, these codifications mention “liberty” or the “liberty of the person” or even a right to liberty (Article 10 ICCPR). But these concepts refer only to the freedom from any kind of imprisonment or custody or to humane living conditions under detention. We talked about this issue in the ninth lesson. The principle of liberty should, however, be strictly distinguished from the habeas corpus rights. Some constitutions indeed mention the concept of “liberty” without a close connection to the provisions ­concerning the habeas corpus rights. An example of such a constitution is the one of Bosnia and Hercegovina, which begins its preamble with a reference to human dignity, liberty, and equality (see . Fig.  18.1). This clause obviously refers to a distinction between the scope of human dignity, which includes the bundle of human rights, and the principles of liberty and equality. Unfortunately, it is not clear what should be understood of liberty and according to which criteria it is to be distinguished from human dignity and human rights, on the one hand, and equality, on the other hand. Nevertheless, there is a classical definition of what is meant by liberty in Article 4 of the French Declaration of  

French Declaration of the Rights of Men and Citizen

Based on respect for human dignity, liberty, and equality … ..      Fig. 18.1  Constitution Bosnia and Hercegovina

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Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law. ..      Fig. 18.2  Article 4 declaration of the rights of man and citizen 1789

333 18.1 · Liberty in Positive Law

the Rights of Man and Citizen of 1789 (see . Fig. 18.2). Here, we read that liberty consists of the freedom to do everything which does not injure somebody else. The freedom to do everything can be called freedom of action. Freedom of action should have no limits except those which assure to the other members of society the enjoyment of the same freedom. These limits of the freedom of action can only be determined by law. Liberty is called here a natural right. This could be understood in the meaning according to which liberty is identified with human rights because human rights are often characterized as natural rights. Nevertheless, when we have in mind that human rights are absolute rights, which do not depend on the rights of others, then it becomes clear that the natural right of liberty refers to something different from human rights. We find an improved version of the French definition in Article 24 of the Constitution of Afghanistan of 2004 (see . Fig.  18.3). While the French clause refers only to the natural rights and seems to mix human rights and the principle of liberty, the Afghan clause distinguishes clearly between each of them. Liberty is indeed defined as a natural right. But it is separate from human dignity. Human rights fall in the scope of human dignity and liberty is a right which is also considered “natural,” but clearly distinguished from the scope of human rights. Another interesting point in the Afghan clause refers to the limits of the freedom of action. It cannot only be limited in the interest of the freedom of action of others but also in the public interest. This clause takes into account that freedom of action must also be restricted in order to raise taxes or to oblige citizens to clean the public walkways in front of their homes, etc. The liberty principle in US constitutional law is very remarkable. It is developed by the case law of the US  

Freedom of Action

 

Article 24 Constitution of Afghanistan (2004) Liberty is the natural right of human beings. This right has no limits unless affecting others freedoms as well as the public interest, which shall be regulated by law. Liberty and human dignity are inviolable. The state shall respect and protect liberty as well as human dignity. ..      Fig. 18.3  Article 24 constitution Afghanistan 2004

Substantive Due Process

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Amendment V (1791) No person shall be . . . deprived of life, liberty, or property, without due process of law … Amendment XIV Section 1 (1868) [No State shall] deprive any person of life, liberty, or property, without due process of law. ..      Fig. 18.4  US constitution

Supreme Court and is called “substantive due process.” The codified basis of the substantive due process doctrine is the Fifth and Fourteenth amendments of the US constitution, according to which no person should be deprived of liberty “without due process of law” (see . Fig. 18.4). The Fifth Amendment relates to the Union while the Fourteenth Amendment relates to the States. The context shows that “liberty” refers to the personal liberty in the meaning of freedom from detention and custody. Both clauses provide that the deprivation of that freedom may only take place on the basis of a fair process. What is meant by fair or due process was clear for the drafters of the amendment because the expression “due process” was a well-established concept that referred to the habeas corpus provisions of the Magna Charta Libertatum of 1215. Beginning with the case Lochner v. New York of 1905, the US Supreme Court modified the meaning of “liberty” and “due process.” The concept of “liberty” was freed from the connection to detention and penal law. It was understood in a much wider and more generalized sense, namely exactly in the meaning of the definition of liberty according to the French Declaration of 1789. The concept of “due process” was freed from its reference to the procedures of a trial and now was a material restriction of the discretionary scope of the legislator. Substantive due process in this new meaning provides that any restriction of the freedom to do or to refrain from doing whatever someone wants to do or not do can only be restricted by a parliamentarian statute. This was what we call statutory reservation. Furthermore, the substantive due process doctrine requires that the statutory regulation be free from arbitrariness. What freedom from arbitrariness means in the concrete case is a matter of case law and falls to the responsibility of judges.  

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335 18.1 · Liberty in Positive Law

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1st draft: (1) All human beings are free. (2) Everybody has in the frame of the constitutional order and morality the freedom to do everything, what does not harm others. 2nd draft: Everybody may freely do or omit what does not injure the rights of others and is not against the constitutional order and morality. Final wording: (1) Everyone has the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or morality. ..      Fig. 18.5  Article 2 (1) GG

A quite similar development happened in Germany. The starting point here, however, was not the habeas ­corpus provisions of the Basic Law, but Article 2 (1) GG, according to which everyone has the right to free development of his personality (see . Fig.  18.5). In order to understand the meaning of this clause, it is useful to consider the drafting history. One of the early drafts of this article did not refer to the “free development of the personality”, but to the freedom “to do everything [that] does not harm others.”1 According to a later draft everybody should be entitled to “freely do or omit what does not injure the rights of others and is not against the constitutional order and morality.”2 The final formulation should not change anything in the meaning of the article. The expression “free development of the personality” appeared to the drafters only as more sophisticated and better suited for displaying the great weight of the provision. In particular, the draft of the UDHR had a certain influence insofar as Article 22 declares that economic, social, and cultural rights are  

1

2

Bericht über den Verfassungskonvent auf Herrenchiemsee, in: Der Parlamentarische Rat. Akten und Protokolle, Boppard: Boldt 1948 Bd. 2, S. 580) Der Parlamentarische Rat. Akten und Protokolle. Boppard: Boldt 1993 Bd. 5/II, S. 578)

Free Development of the Personality

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“Elfes” Judgment

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“indispensable for his dignity and the free development of his personality.” The expression “free development of the personality” was nevertheless very ambiguous. On the one hand, it was a pattern of traditional philosophical language. This pattern had already appeared, for example, in Wilhelm von Humboldt’s On the Limits of State Action, where he wrote (Chap. II): “The true purpose of man – not the purpose which is prescribed by the changing desires but rather by the forever unchangeable reason – is the highest and most adequate development of his abilities in order to reach completeness. For that kind of development liberty is the first and unavoidable condition.” John Stuart Mill quoted Humboldt in his book On Liberty (1859) (Chap. III) using the expression “free development of personality” and mentioning that only few people outside of Germany would understand this thesis. On the other hand, the expression was very often confused with the concept of human dignity and it was not really clear what the difference was. In 1947, the German legal philosopher and professor of constitutional law Helmut Coing held the opinion that “free development of personality” and “human dignity” are only two different expressions of the same idea.3 It is necessary to know this past history in order to understand what happened in the year 1957 when the Federal Constitutional Court issued its “Elfes” Judgment. In this decision, the Court laid down the general principles of the distinction between human dignity and “the right to free development of the personality.” Nevertheless, it took into account the understanding of Humboldt as well as the contrary understanding of Coing and stated that the “right to free development of the personality” has a double meaning. The Court, therefore, declared that Article 2 (1) GG refers to human dignity as well as to the principle of liberty. As concerns the latter, the provision referred to the protection of freedom of action. With regard to the former, the provision referred to the protection of freedom of will. Unfortunately, the Court did not clarify the function of the clauses about the reservations concerning the rights of others, the constitutional order, and morality. From a philosophically clarified position of the meaning of human dignity, it is obvious that these reservations can only be related to freedom of action and not to the free

3

Coing SJZ 1947, 641

337 18.2 · The Content of the Principle of Liberty

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development of personality in the meaning of human dignity (freedom of will). With regard to human dignity, the scope of personal self-determination should be considered as untouchable and not restrictable as it is declared in Article 1 GG, according to which the dignity of man is untouchable. In the case law that has continued to modern day, it has become common practice to quote “Article 2 (1) i.c.w. Art. 1 (1) GG” (i.c.w. = in combination with) when it is considered as referring to human dignity – i.e., to freedom of will. Comparatively, the isolated quotation of Article 2 (1) GG only refers to freedom of action.

18.2

The Content of the Principle of Liberty

So, it becomes clear what the principle of liberty means and what is the difference between this principle and human rights. Human rights are always related to the protection of freedom of will because freedom of will is the constitutional element or characteristic of personhood and personhood is the object of an absolute value (dignity). Comparatively, the principle of liberty only refers to freedom of action. Freedom of action is not absolutely protected. It does not guarantee an absolute position, which under all circumstances is protected against any diminution. It is the function of positive law to define the limits of everyone’s freedom of action. Nevertheless, if freedom of action can be restricted by positive law (sometimes to a minimum) and if it does not protect any absolute position, what then is its function? Its function is the implementation of a special rule of distributing the burden of argumentation and justification. Under the principle of liberty, it is not the burden of the individual to present arguments and justifications in order to convince public authorities that they should not restrict the freedom of action. Rather, it is up to the public authorities to present arguments and justifications for why the restriction of the freedom of action is necessary. Furthermore, it is not enough to have good arguments in favor of the restriction of liberty. These arguments must be adopted by parliament and made into a statute. For only on the basis of a statute that authorizes interventions may restrictions of liberty take place. So, the intervention into liberty is under democratic control. This is why we can call states under the principle of liberty liberal states.

Liberty Refers to the Freedom of Action

Liberty Refers to the Burden of Argumentation

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Liberal/Illiberal States

The principle of liberty is the exact opposite of what applies in illiberal states. The rule is thus: the government must not justify interventions in the scope of individual freedom. It is rather the individual that takes the burden of convincing the government of the freedoms he wants to enjoy. Respect or disrespect toward the principle of liberty makes the difference between a liberal and an illiberal state. Here I want to point to a current development inside the European Union that can only be considered a catastrophe and a serious danger not only for the flourishing, but also for the survival of the unique EU project. There are several EU member States that are governed by politicians who defend the idea of an illiberal state. And they do it very frankly. For instance, the Prime minister of Hungary Viktor Orbán wants to transfer Hungary from a liberal democracy to an illiberal state. He speaks expressively of an illiberal or non-liberal state. Nevertheless, he is not alone. We can observe a current worldwide tendency to vote for populistic politicians who demand frankly the abolition of the principle of liberty. The attraction of such political ideas seems to be based on the desire of many people to be guided and fostered by big, powerful men. This relieves them of the burden of freedom, which is always associated with responsibility and the risk of failure. But let us return to our topic.

18.3

18

Rules

Rules and Principles

Article 2 (1) GG as well as the French Declaration of 1789 and almost all the other legal documents that are related to liberty do not use the term “principle” but the term “right.” All of them are talking of a right to liberty or of a right to the free development of personality. Nevertheless, it is hardly possible to take the term “right” seriously when we consider that this so-called right to liberty stands under multiple reservations – the reservation of the rights of others, the reservation of morality, the reservation of the constitutional order or of the public interest. This confusing use of the expression “right” is the result of a quite poor language. Confusions of language are mostly based in a confusion of thoughts. So, we can say that the use of only one and the same expression for obviously different concepts stems from a lack of consciousness about the difference between these concepts.

339 18.3 · Rules and Principles

Nevertheless, meanwhile this confusion of thought and language has been overcome. It was in particular the American legal philosopher Ronald Dworkin (∗ 1931) who discovered and explained the difference between rules and principles. He saw that judicial decisions are not only based on rules, but also on principles. Rules describe a certain situation (legal facts) and determine that in a case where this situation occurs, a certain legal consequence should follow. For example, if the rule provides that a testamentary document is invalid if it is not signed in the presence of two witnesses, then you cannot inherit on the basis of a testamentary document that has not been signed in the presence of two witnesses. Rules always apply in an all-or-nothing way. Either you can inherit or you cannot. There is no other way according to the rule. An important characteristic of legal rules is that they can stand in conflict to each other. In such a situation, the question of what should be done cannot be answered. In order to avoid such dilemmas, it is a very important element of a legal order to provide for rules that determine which one of the conflicting rules should be favored. In the event that there is not such rule that solves the conflict, both rules are considered invalid. I am going to come back to this issue in the last lesson. Principles are different. They do not determine the outcome of a case. They deliver certain topics that are to be balanced against the topics of conflicting principles. The process of balancing takes place within the scope of judicial discretion. This scope is only restricted by the number of principles that a judge has to take into account. But the result of the process is not determined by law. Unsolvable conflicts between competing principles is not possible because it is always possible to find a compromise. This distinction between rules and principles was taken over by the German legal philosopher Robert Alexy (∗1945). In addition to Dworkin, Alexy defines legal principles as commandments of optimization. Legal principles command the realization of the idea of the principle concerned to the greatest possible extent. In the event that there is a conflict between two different legal principles, like with Dworkin, it is a matter of balancing and finding a compromise of what extent the two competing ideas can be realized. This process of balancing stands within the scope of discretion of the deciding judge. Alexy applies this doctrine not only to the “right” to liberty, but also to human rights. He holds the opinion

Principles

Commandments of Optimization

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Difference Between Freedom of Will and Freedom of Action

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that both of them are to be considered legal principles. So, he comes to the conclusion that in a conflict between human rights as well as in a conflict between liberty and other legal principles, there must always be exercised a process of balancing. According to the doctrine I defended in this lecture, the understanding of human rights as mere legal principles in the meaning of Dworkin and Alexy is not adequate. Considering that the protection scope of human rights is derived from human dignity  – i.e., from the absolute value of personhood  – it is not possible to balance between conflicting human rights or where there are conflicts between human rights and other principles. Dworkin and Alexy argue that conflicts between human rights were not avoidable and that the legal order by definition, and regardless of the particular circumstances, must always keep in stock solutions for norm conflicts. This, however, is not a sufficient argument in favor of the application of the principle doctrine to human rights. How we can deal with conflicts in the field of human rights is the issue of the last lesson. Here, I want to say only that, from the alleged fact that a conflict between human rights is not solvable when we understand human rights as absolute rights, it does not necessarily follow that this doctrine must be false. It is also possible that the doctrine of the completeness of the legal system can be false and that it is not true that legal systems always keep in stock solutions for every norm conflict. Now I come back to the so-called right to liberty. As we have seen before, liberty refers to freedom of action. Restrictions of that freedom normally do not lead to the weakening or even to the destruction of personhood. If we are restricted to do what we want to do, we are normally free to oppose the restriction. We can be outraged against it and we can protest. In other words, we can take action against the restriction according to our own free will. This shows that normally restrictions to freedom of action do not lead to a restriction of freedom of will. I want to demonstrate that with the following graphics. Consider someone who is sitting in a room while the door is closed. He could leave the room because the door is closed, but not locked (see . Fig. 18.6). Still, he believes that it is not possible to leave the room because he thinks it is locked. Therefore, he will not create the will to leave the room. Compare this case with the second one. Someone is sitting in a room. He decides to leave the room, stands up,  

341 18.3 · Rules and Principles

..      Fig. 18.6  Freedom of action but not freedom of will. (© Paul ­Tiedemann)

..      Fig. 18.7  Freedom of will but not freedom of action. (© Paul ­Tiedemann)

goes to the door and shakes the door handle. But he cannot open the door because it is locked (see . Fig. 18.7). Which of these two cases tells us a story about a restriction to the freedom of will and which one tells a story about freedom of action? It is obvious that in the second case the person has a free will although she cannot transform it into a successful action. In the first case, there is no restriction of freedom of action, but there is a restriction of freedom of will because the person is not able to produce the will to leave the room. This inability is based on wrong information about the true situation. If the inability is caused by a simple error, we can talk about the realization of the ordinary risks of life. If the inability is based on wrong information given by a warden in order to prevent the person from leaving the room—let’s tell her that the lock is out of order  – then we have to talk about a violation of human rights.  

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Total Institutions

There is, however, a degree of reduction of freedom of action that leads sooner or later to a deprivation of free will. This is particularly the case in so-called total institutions (see ninth lesson). But besides this extreme situation, the reduction of the free scope of action does not lead to an infringement of will and of personhood. This is why the right to liberty is not to be considered a human right. It is rather a legal principle in the meaning of Dworkin and Alexy. This principle demands an optimization of freedom of action, but it allows to take conflicting principles and aims into consideration. This is why the reservation clauses concerning the rights of others, the public interest, and morality can be easily understood as references to conflicting principles that makes it possible to balance between maximizing individual interest to its greatest freedom and the interest of others, of the public, etc. 18.4

Liberty as Relative Value

18

 he Philosophical Foundation T of the Principle of Liberty

Before we look to the process of balancing in more detail, I will focus on whether there is a philosophical foundation for the principle of liberty. I think the principle of liberty is also connected with the principle of human dignity. But the connection is not so close like in the case of human rights. It is much looser. Human dignity primarily refers to freedom of will and not to freedom of action. Nevertheless, absolute respect toward freedom of will also demands or includes a relative respect toward freedom of action. To develop a free will only makes sense in regard of the transformation of will into action. Restrictions on the freedom of action do not violate freedom of will, but respect toward the will includes a certain respect toward the action that is based on that will. This respect is not absolute but only relative. But it is nevertheless a kind of respect. That relative respect is shown by the attempt to optimize the scope of the freedom of action and by the duty to justify any restriction of the freedom of action toward the person concerned. I would, however, defend the thesis that the connection between human dignity and the principle of liberty is so loose that it is hardly possible to derive certain standards of respect toward liberty that have to be recognized by human persons independent of the legal ties between them. I do not believe that we can define sufficiently clear

343 18.5 · The Legal Instruments for Taking Care of Liberty

moral rules of conduct that would allow one to respect the principle of liberty even in the state of nature. Perhaps we can say that total ignorance and indifference to the wishes of others, even in the state of nature, must be considered immoral. But what degree of taking care of the wishes of others should be considered as relevant and how exactly this has to happen seems to me to be unanswerable for the state of nature. The reason is that in the state of nature there is no neutral instance that can define the limits of the freedom of everybody by considering the interests of everybody in a sufficient and impartial way. In other words, the principle of liberty does not take a relevant role in the state of nature because of a lack of a public institution that provides for the scope of individual freedom and its limits. In order to ensure an optimization of an individual scope of freedom of action, it is therefore a good idea for individuals to integrate themselves into the system of a state and a legal order that provides sufficient care for the principle of liberty. Only in the frame of a legal order is it possible to take all or at least the most competing interests into account in order to define the limits of the individual freedom and to optimize the scope of the individual freedom of everyone. This is why we must conclude that the principle of liberty cannot be considered a supra-positive moral standard. It is rather an element of the rule of law and as such an element of a decent legal order. It is applicable and valid only in the frame of the legal order and therefore a pure legal concept insofar as there is a crucial difference between the principle of liberty and human rights. The latter are legal rights that are based on moral rights. As moral rights, they are valid and applicable also in the state of nature. 18.5

 he Legal Instruments for Taking T Care of Liberty

The determination of the scope of freedom of action in a particular case demands a process of balancing competing interests in a sufficiently large scope of freedom. According to American case law, this process of balancing is not clearly structured so that it is very often very difficult or even not possible to subject this process under rational control from outside. The process of balancing takes place in a black box (see . Fig.  18.8). Conflicting interests or  

Liberty in the Legal Order

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US Doctrine

German/EU Doctrine

Principle of Proportionality

Result

Result

..      Fig. 18.8  Process of balancing

Principle of Proportionality

values are put in the box and in the end the decision is taken out of the box. But what happens inside the box during the process of balancing is more or less hidden. The disadvantages of this approach are, however, compensated by a strict binding to precedents. In present day Europe dominates another approach, namely the so-called principle of proportionality (see . Fig. 18.8). So far as I can see this principle was not on the judicial agenda before the second half of the nineteenth century. The term proportionality appeared for the first time in a textbook of administrative law by Otto Mayer that was published in 1885. In 1955 appeared a doctoral thesis that developed the principle of proportionality more or less in the meaning as it is understood in our days. The German case law took over this new doctrine in a decision of the Federal Constitutional Court of 1971. As early as 1970, the Court of Justice of the European Community had already mentioned this doctrine in the framework of European law. From there, it influenced the national case law of almost all EU member states. The principle of proportionality tries to make transparent what happens inside the black box. It is supposed to rationally structure the process of balancing and make it comprehensible. The principle of proportionality demands a process of balancing that is organized according to four steps. Only if these four steps are taken can the process be considered rational and comprehensible. The first step requires a legitimate purpose for the restriction of the freedom of action. The requirement of a legitimate purpose had already appeared in the philosophical thinking of the eighteenth century about the freedom of action. The philosophical considerations are reflected  

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Legitimate Purpose

345 18.5 · The Legal Instruments for Taking Care of Liberty

in the restriction grounds that are m ­ entioned in the codifications of the principle of liberty. The law defines three or four restriction grounds. I think the ground for restriction of the same liberty of others is easy to justify. The principle of liberty is based on mutual respect and not only on an egoistic interest in one’s own freedom of action. The ground for restriction of the accordance with the constitutional order refers to the fact that the state is sanctioned by the constitution and must therefore operate within the frame of the constitution to realize the common goals of society and to organize the cooperation that is needed to achieve these goals. These competences include the justification of a restriction of the individual freedom of action because choosing a common goal and organizing cooperation includes that the individual must renounce conflicting private goals and conflicting actions. The ground for restriction of public interest has no divergent meaning than the ground of accordance with the constitutional order. Public interests always refer to common goals which are goals of the constitution itself or goals which are chosen by parliament within the frame of the democratic process. The ground for restriction of morality seems me, however, illegitimate. Moral convictions are always a private matter because only natural individuals are endowed with conscience and are therefore responsible for a life in accordance with their own convictions about good and evil. Of course, people must not forget their moral convictions when they are acting as citizens. They can, for example, vote for politicians who want to establish moral aims as legal aims through legislation. But the only way to integrate moral aims in the law is the way of the democratic process according to the constitution. If a majority of voters share the opinion that it is immoral to be naked on the streets, they can vote for politicians who make a law according to which it is prohibited to be naked on the streets. But if such a law does not exist, it is not legitimate to reduce the freedom of action by a police order simply on reasons of “morality.” The second step of the principle of proportionality refers to the suitability of the intervention. The intervention in the scope of the freedom of action must be suitable in order to achieve the purpose. I give a (negative) example: Given the purpose is to punish those who have pounced against President Erdoğan and the Turkish government arrests therefore all university t­eachers whom

Suitability

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Necessity

Adequateness

Erdoğan considers to be his political opponents. We can conclude that this intervention in the freedom of action of the university teachers can certainly not to be considered as suitable means, because the putschists are not identical with the critical university teachers. The third step of the principle of proportionality refers to the necessity of the means to achieve the purpose. Necessary are only those means which are the least intervening in freedom but which are still suitable for achieving the aimed legitimate purpose. For example, if a riot can be terminated by using a water cannon or by shooting at the insurgents, the water cannons are the necessary means. It is not necessary to shoot at them in order to achieve the aim. The fourth step of the principle of proportionality refers to the adequateness of means and ends. It is, so to say, not adequate, to use a sledgehammer to crack a nut. For example, when groups of Hooligans are fighting each other and threatening damage to shop windows, it would not be adequate to shoot at the Hooligans because it is not adequate to defend a good of relative low value (shop windows) by destroying goods of relative high value (human life). If no other means is available to end the fight, the police may not intervene. It is obvious that the application of the principle of proportionality is not like a mathematical calculation. There is of course a large margin of appreciation or discretion in the application of the principle. Nevertheless, it structures the process of balancing and allows to a certain extent some rational control. So it serves the purpose of minimalizing interventions and restrictions on the freedom of action while also optimizing the realization of that freedom. ??Do you still remember?

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18.1 Do you know codifications that mention the principle of liberty? 18.2 What is the content of the principle of liberty? 18.3 What is the difference between rules and principles and why is there not right to liberty, but only a principle of liberty? 18.4 Is the principle of liberty part of supra-positive law?

For the answers, see 7 Chap. 21.  

347 Reading Recommendations

Reading Recommendations Alexy, Robert: A Theory of Constitutional Rights. Oxford 2010 Barak, Aharon: Proportionality and Principled Balancing. In Law & Ethics of Human Rights 4/1 (2010), Art. 1 (Comment: Barak uses the term “human right” where it is more appropriate to talk about the principle of liberty. His description of the proportionality principle is, however, elucidating.) Dworkin, Ronald: Taking Rights Seriously. Cambridge MA 1977, Chapter 2 Mill, John Stuart: On Liberty. 1859, chapter 3. http://www.­gutenberg.­ org/ebooks/34901 Moran, Gabriel: Uniquely Human. The Basis of Human Rights. 2013 Orbán, Viktor: Speech of 26 July 2014  in Tusnádfürdő. http:// budapestbeacon.­c om/public-policy/full-text-of-viktor-orbansspeech-at-­baile-­tusnad-tusnadfurdo-of-26-july-2014/10592 Silkenat/Hickey/Barenboim (eds.): The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat). Cham, Heidelberg, New York 2014

Case Law BVerfG, judg. of 16/01/1957 – 1 BvR 253/56 –, BVerfGE 6, 32 (“Elfes”). BVerfG, dec. of 16/03/1971 – 1 BvR 52, 665, 667, 754/66 –, BVerfGE 30, 292, 316 Court of Justice of the European Community, jud. of. 17/12/1970 – C11/70  – “Internationale Handelsgesellschaft”, § 12. https://curia.­ europa.­eu/jcms/jcms/j_6/en/ > case-law US Supreme Court, Lochner v. New York [198 U.S. 45 (1905)]

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The Principles of Equality Contents 19.1

 he General Appearance of Equality within T Human Rights Codifications – 351

19.2

Is There a Human Right to Equality? – 353

19.3

I s There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex Etc.? – 356

19.4

I s There a Human Right Against Discrimination on Reasons of Making Use of Human Rights? – 359 Reading Recommendations – 361

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_19

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“Equal” Rights The expression “equal rights” in some human rights instruments does not refer to the principle of equality. It repeats only what is self-evident for human rights: that everyone is entitled to enjoy them, that is, that no one may be infringed by a violation of them. This constitutes the general character of human rights and has nothing to do with equality.

The Principle of Equality The principle of equality can only meaningfully be applied to the relationship of the members of a cooperative community. It refers to the standards of distribution of burdens and benefits of the cooperation. Privileges need particular arguments that can show their rational acceptance by the least privileged members of the community. Beyond the frame of cooperative communities, there is no moral reason for any equal treatment. In contrast, some philosophers who call themselves Egalitarians assert that equality in the meaning of equal treatment is the self-evident substantial principle of any morality and must therefore apply to all human beings or living entities, regardless of whether they are members of the same cooperative community (the Presumption of Equality Thesis).

The Discrimination Ban Discriminating actions relating to the reduction of freedom of action cannot be considered a matter of human rights even where the actions are motivated by racist or gender related grounds or the like. Nevertheless, they must be banned in the interest of preventing conduct that at some point may come to serious violations of human rights. This is one of the aims of the positive law of a decent state.

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351 19.1 · The General Appearance of Equality within Human Rights…

19.1

 he General Appearance of Equality T within Human Rights Codifications

There is still another important principle that is to be strictly distinguished from the corpus of human rights. This is the principle of equality. Nevertheless, in the context of human rights, there are huge misunderstandings concerning the characteristic of equality. The reason for this is that equality seems to be mentioned very often in human rights codifications. This is why many philosophers think that there is a close connection between human rights and equality, or even that equality can be ­considered a specific object of a human right. Contrary to the principle of liberty, the principle of equality  – or maybe the right to equality  – seems to be mentioned more often in human rights codifications. Article 1 UDHR starts with the declaration that “all human beings are equal in dignity and rights.” (see . Fig. 19.1) Furthermore, Article 2 of the same provides that “everyone is entitled to all the rights and freedoms set forth in this Declaration.” (see . Fig.  19.2) In a similar way, the ECHR declares in Article 14 that the “enjoyment  

 

All human beings are born free and equal in dignity and rights. ..      Fig. 19.1  Article 1 UDHR

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. ..      Fig. 19.2  Article 2 UDHR

“Equal” Rights

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Article 14 ECHR The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ..      Fig. 19.3  Article 14 ECHR

of the rights and freedoms set forth in this Convention shall be secured without discrimination.” (see . Fig. 19.3). Do these provisions add something to the list of human rights? Do they express something particular to a specific human right? The answer is obviously not if we take into account that each of the other articles of the Convention that deal with a particular human right starts with the words “Everybody” or “No one.” There is only one exception. Article 12 ECHR refers to the right to marry and the right to establish a family. These rights are guaranteed only for men and women. Obviously, the convention does not touch on the issue of transgender people, which at the time of the drafting process was not an issue of public debate. If someone were to argue that transgender people do not possess the right to marry and establish a family, Article 14 ECHR could become relevant to such discussion. For it prohibits the discrimination on the basis of sex. Nevertheless, I think we can set this case aside. Considering that the ECHR is considered a “living instrument” (see lessons one and ten), it is easy to include transgender people in the frame of “men and women.” By doing so, we understand Article 12 ECHR as a means of conferring the right to marry and the right to establish a family to everybody. This leads to the initial conclusion that any kind of discrimination in terms of a person’s enjoyment of any individual human right is automatically prohibited. In this regard, Articles 1 and 2 UDHR as well as Article 14 ECHR do not add anything to the list of human rights. In particular, they cannot be considered separate human rights. Does this result change if we take into consideration that Article 2 UDHR and Article 14 ECHR prohibit any discrimination on the grounds of sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status? Obviously not. Considering  

Human Right on Equality?

Special Discrimination Bans

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353 19.2 · Is There a Human Right to Equality?

that including the words “everybody” or “no one” with each individual human right ensures that nobody is excluded from possessing human rights, any such exclusion similarly could not be perpetrated on the basis of particular grounds. So, it seems to be obvious that the quoted clauses of the UDHR as well as of the ECHR are simply superfluous. They repeat only what is already said in the individual human rights provisions. The case law of the ECtHR confirms this view. There are several decisions of the ECtHR where the court determined a violation of Article 14 based on discrimination of the applicants when exercising their human right. Accordingly, the court decided that the prohibition of public demonstrations of LGBT activists by Russian authorities violates not only their right to free assembly (Article 11 ECHR), but also the discrimination ban of Articles 14 ECHR. Nonetheless, whether the court determines a violation of Article 11 ECHR alone, or a violation of Article 14 ECHR as well makes no difference. Importantly, the violation is not based on the act of discrimination, but on the oppression of the communication rights. The reference to equal rights has nothing to do with the principle of equality. It stresses only the generality of human rights. Equality would come into play only if it were true that person A may enjoy the human rights only because person B also enjoys them and because there would be a principle according to which person A and person B should be treated equally. But this is not what is meant by “equal rights.” Person A enjoys human rights only because she is a person and regardless of what is going on with other persons.

19.2

Is There a Human Right to Equality?

So, we come to the conclusion that the classical human rights codifications do not contain the principle of equality. But what about Article 20 of the EU Charter of ­Fundamental Rights (see . Fig.  19.4) and Article 3 (1) GG (see . Fig. 19.5)? These clauses declare that all per 

 

All persons are equal before the law. ..      Fig. 19.4  Article 20 EU Charter

Equality Before the Law

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All human are equal before the law. ..      Fig. 19.5  Article 3 (1) GG

Beam Scales

Decimal Scales

..      Fig. 19.6  Scales. (© Sophie Reinisch)

Characteristic of Equality

sons are equal before the law. This text comes from the German Constitution of 1849. The idea behind the wording was to hinder courts of law and administrations from applying the same law differently depending on whether they had to deal with an issue of someone from the lower classes or someone from the higher classes. The law should be applied equally. Nowadays, this rule is also quoted to indicate that not only the application of a law but also the content of the law itself has to comply with the standard of equality. The law itself may not discriminate. Our question, however, is whether these clauses express a genuine human right or whether they refer to something different. So, the question is again whether there is a free standing principle of equality that cannot be derived from human dignity or whether these clauses express a separate human right. We have already dealt with the problem of equality in lesson three. Now I want to take a deeper look at the issue. In order to understand the characteristic of equality, it is very useful to refer to a metaphor that was coined by the Swiss philosopher Angelika Krebs (∗1961). She explains the categorical difference between human rights and equality by using the picture of a beam scale and a decimal scale (see . Fig.  19.6). Equality refers only to the equilibrium of the two pans of a beam scale. It does not matter what is on the pan. It is only crucial that the weight of one pan is exactly as high or as low as the weight of the other pan. In contrast, human rights are like a decimal scale. They deliver an absolute standard of what is needed  

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355 19.2 · Is There a Human Right to Equality?

for a dignified life. If this minimum threshold is not met, then human beings are living under inhuman conditions, regardless of whether they are the only person in such conditions or if they are one of many persons that are equally affected by the same conditions. If a person suffers from a lack of the goods which are protected by human rights, then the problem is not that the needs of other people are satisfied. The problem is that the person in need does not possess what she needs for a dignified life, regardless of the situation of other persons. The standards of human rights are objective standards while the standards of equality are relative standards. Equality always refers to human beings as elements of a collective web. Equality is a principle of distribution of burdens and benefits among the members of a group. Equality always depends on what the individual deserves in relation to each other members of the relevant group. Equality, therefore, is a standard of justice in cooperative structures. Human rights, in contrast, always refer to human beings in their individual capacity. Human rights are not a matter of distribution. Human rights are not things that can only be enjoyed by those who deserve them. Human rights are not things that must be earned. Human rights are standards of justice that relate to all living entities who are endowed with the capacity for personhood. So, human rights are never a matter of comparison. This shows that the principle of equality is an independently existing principle. It is to be strictly distinguished from human rights. Nevertheless, the idea that equality only refers to the members of a cooperative community and to the question of how the burdens and the benefits of cooperation should be distributed among its members is in our days very controversial. There is a group of very influential philosophers who share the opinion that equality and not human dignity is the fundamental principle of any universal morality. They call themselves Egalitarians (Gosepath, Tugendhat). They hold the opinion that membership in a cooperative community is not a required condition for applying the principle of equality. Instead, the required condition for the principle of equality is simply the general competence to cooperate. Therefore, they conclude that the principle is applicable to all human beings or at least to all persons. Other Egalitarians go beyond that, defending the thesis that equality does not refer to cooperation, but to equal

Characteristic of Human Rights

Egalitarianism

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Systemic Fallacy

natural properties like the ability to suffer (Singer). From this point of view, they conclude that principle of equality also applies to the relationship between human beings and animals. In any case, the principle of equality in the Egalitarian sense means that equal treatment is always morally justified if there are no exceptionally particular reasons to treat subjects differently. The differentiation, and not the equality or the equal treatment, must be justified. This is called the presumption of equality thesis. The principle of equality is in this meaning a principle that regulates the burden of argumentation. It is a procedural principle. In the eyes of Egalitarians, the principle of equality is self-evident. It does not need any further justification or argumentation. I guess that this approach is based on a certain kind of fallacy that consists in illogically enlarging a principle beyond the system for which it is justified by ignoring the specific conditions of that system. The requirement of equal treatment under the condition of cooperation becomes enlarged beyond the system of cooperation by ignoring that only cooperation delivers the sense under which equal treatment can be justified. The requirement of equal treatment is not self-evident. It is well grounded in the argument of cooperation. Without this argument, equal treatment is not self-evident and suffers from a lack of justification. The presumption of equality thesis reminds me of a famous argument by which the theologians of the middle ages tried to prove the existence of God. They argued that every phenomenon in the world is caused  – that is, every worldly phenomenon is based on causation. So, they concluded that whatever exists is caused. If the world as a whole exists, it must have been caused. And the cause of the world as a whole is what they called God. They ignored the fact that systemic conditions are only applicable to the system in question and not to relationships that go beyond such system. They overlooked that the conditions inside the world do not imply the same conditions outside the world. 19.3

19

Discrimination on Grounds of Unavailable Properties

I s There a Human Right Against Discrimination on Reasons of “Race”, Color, Sex Etc.?

So far, we have clarified that human rights by definition refer to every human person so that human rights are not equal rights but the same rights. Equality is something

357 19.3 · Is There a Human Right Against Discrimination…

­ ifferent from human rights. Furthermore, we have clarid fied that the principle of equality refers to the fair allocation of the burdens and benefits of cooperation among the participants of the respective cooperative community. ­Equality is therefore not a universal standard, but a standard that can only be applied to particular communities. There is, however, still another aspect of equality. There is a kind of unequal treatment that is not connected with fair sharing of burdens and benefits, but with a kind of devaluation and humiliation in regard of certain attributes of human individuals that are immutable or otherwise unreasonable for humans to change. I think of cases where individuals are treated unequally because of their sex, “race,” color, language, religion, political or other opinion, social origin, association with a national minority, and the like (unavailable properties). In these cases, the issue of unequal treatment is not a violation of human rights but something that constitutes a restriction of the freedom of action. Sometimes it is not really clear whether we should regard a particular situation as a case of unfair burden-­ benefit distribution or whether the unequal treatment is primarily motivated by the devaluation of a person’s unavailable properties. Take the case of two flight assistants. Both of them earn an appropriate amount of money, but one of them earns 400 EURO less than the other because the former is female while the latter is male. We can discuss this case in terms of a fair burden-benefit distribution, but it is also possible to understand the unequal payment as an expression of a devaluation and humiliation of the female sex. The same is true for the case of the Roman Catholic Church where women, in principle, do not have access to higher offices like the office of a priest or a bishop. Is it because the men in the church want to defend their privileges on egoistic grounds or is their behavior steered by a fundamental attitude of devaluation and humiliation of the female sex? In the following case the situation is clearer. Someone is denied access to a public theater or restaurant simply because he is black. There are no tiers of cooperation between someone who wants to visit a theater and the owner of the theater who denies entry. In this case, cooperation between the two only starts with the granting of access because a contract has been executed between the two that establishes a community of cooperation between them. So, here we have a case where it is very clear that the situation is not motivated by egoistic interests in an unfair

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Discrimination Ban as a Human Right Rank Theory of Human Dignity

Risks for Human Rights

19

benefit-burden distribution, but simply by the racist attitude of the owner. The owner regards the applicant as unworthy to visit the theater solely because of his skin color. How should we consider cases of these kind? Some philosophers hold the opinion that such discriminating attitudes must be considered violations of human rights because race or gender discrimination and the like constitutes a disregard for human dignity. They think that there is a need for rights which defend and protect against such acts of disregard. Rights which serve the defense and protection against the disregard of human dignity are to be regarded as human rights. It follows that there is a human right not to be discriminated against on the grounds of sex, race, etc. These philosophers consider human dignity as a status or a rank that demands a certain kind of respect toward the bearer of the status. So, denying access to a theater solely on the basis of skin color is, so to say, an act of “lèse-majesté.” Human rights have the function of protecting the holder against such acts of lèse-­ majesté (Waldron, Stöcker). Nevertheless, this is not an understanding of human dignity and human rights that is based on the absolute value of personhood. Being denied access to a theater does not put a person at risk of having their personhood infringed. This is also true where access to a theater is denied not because not being able to pay for a ticket, but because of racist grounds. These cases of discrimination are therefore not to be considered a violation of human rights. Nevertheless, this is only a part of the story. We also have to take into account that a regular and wide spread social practice of excluding people from theaters solely on grounds of their skin color produces a social atmosphere where such people do not see themselves in the eyes of the others as being equally worthy persons. They lose the awareness and self-esteem as persons and cease to trust in their own competence to lead their life on the basis of their own considerations and reflections. They will then start to subject themselves to the will of others. At the same time, the general acceptance of discrimination on grounds of sex, race, and the like allows a conviction in the mind of the majority that part of the population that is being discriminated against is indeed less worthy and cannot be considered bearers of the same human rights. Sooner or later, serious acts of violations of human rights will follow from such attitudes.

359 19.4 · Is There a Human Right Against Discrimination…

Single acts of discrimination cannot be considered v­ iolations of human rights because they do not produce a serious threat to the personhood of the victim. In the long run, however, acts of discrimination tend to create a threat to human rights. They must be banned in the interest of preventing conduct that may at some point come to serious violations of human rights. Therefore, a state that is committed to the protection of human rights has the duty to act against discrimination through the means provided by positive law. Thus, laws prohibiting discrimination should not be seen as positivation of supra-positive human rights, but as a precautionary measure by positive law. 19.4

I s There a Human Right Against Discrimination on Reasons of Making Use of Human Rights?

There is still another variant of discrimination in the context of human rights. It does not consist in a reduction or restriction of a particular human right but in the infliction of disadvantages because someone makes a special use of his human rights. Consider the following case. A Catholic chief physician worked in a Catholic hospital. His employment contract read that: “Catholic employees are expected to recognize and observe the principles of Catholic doctrinal and moral teaching.” After his divorce, he remarried. This is against the Catholic doctrine. Consequently, the hospital carrier terminated his employment. The doctor brought legal action for protection against the dismissal. The ECJ and subsequently the Federal Labor Court declared his dismissal unlawful, because it (1) violated Article 21 of the EU Charter of Fundamental Rights and (2) was also incompatible with an EU Directive prohibiting less favorable treatment of persons compared to others on reasons of religion. The main argument of the judgements was that Catholic employees were discriminated, because their non-­Catholic coworkers did not similarly face the risk of termination if they also remarried. I have some doubts as to whether, in this case, discrimination based on religion is in question. It seems more about the right to marry and to family life, but the chief physician was not prevented from remarrying. He should only have to accept the termination of his employment, but there is no human right to the post of a chief p ­ hysician.

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The idea behind the prohibition of discrimination does not therefore refer to the impairment of human rights, but to the fact that someone who wants to exercise his human rights in a certain way, must pay a higher price for it. The idea is that the enjoyment of human rights should not be made more expensive. Importantly, that price does not consist in the restriction of the human right itself, but in a currency beyond the scope of human rights, i.e. the physician’s employment. However, the question of whether the enjoyment of human rights may have a price is not a question that is answered by the human rights regime itself. Rather, the answer always lies in the system of the respective ordinary law, which is to apply in the particular case. This is even confirmed by the EU directive that was to apply in the chief physician case. In Article 4 of this directive (Council Directive 2000/78/EC of 27 November 2000) is provided that:

»» a difference of treatment … shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, ….

19

This provision shows that the enjoyment of human rights can in certain situations be connected with a certain price. On the one hand, it is not an occupational requirement for a physician not to marry a second time. On the other hand, it is an occupational requirement for a Catholic priest not to marry at all. If he wants to make use of his human right to marry he has to pay the price by quitting his job. For the functionary of a political party, it may be an occupational requirement not to express a political opinion that is incompatible with the political orientation of the party. For the employee of a tobacco factory, it can be an occupational requirement not to engage in an anti-­smoking campaign. All of them have to pay the price when making use of their human rights. Therefore, it cannot be said that under all circumstances you must treat people equally regardless of the way they exercise their human rights. There is no general ban of discrimination in this respect. Discrimination bans are rooted in the logic of the context in which they exist, not in human rights.

361 Reading Recommendations

??Do you still remember? 19.1 What do Article 2 UDHR and Article 14 ECHR add to the list of human rights? 19.2 Why does the expression “equal human rights” have nothing to do with the principle of equality? 19.3 What is the function of the principle of equality? 19.4 Is there a human right not to be discriminated against on the grounds of sex, “race,” color, religion, political or other opinion, social origin, association with a national minority, and the like?

For the answers, see 7 Chap. 21.  

Reading Recommendations Arneson, Richard: Egalitarianism. In Standford Encyclopedia of Philosophy, 2013. https://plato.­stanford.­edu/entries/egalitarianism/ Gosepath, Stefan: Equality. In Standford Encyclopedia of Philosophy 2007. https://plato.­stanford.­edu/entries/equality/ Krebs, Angelika: Gleichheit oder Gerechtigkeit. Die Kritik am Egalitarismus. http://www.­gap-im-netz.­de/gap4Konf/Proceedings4/ pdf/6%20Pol1%20Krebs.­pdf Krebs, Angelika: Gleichheit oder Gerechtigkeit. Texte der neueren Egalitarismuskritik. Frankfurt 2000 Neuhäuser, Christian/Stöcker, Ralf: Human Dignity as Universal Nobility. In: Düwell/Vraarvig/Brownsword/Mieth, The Cambridge Handbook of Human Dignity, 2014, pp. 298 Singer, Peter: Animal Liberation. 1975 Tugendhat, Ernst: Vorlesungen über Ethik. 1995 [p. 374] Waldron, Jeremy: Dignity and Rank. In European Journal of Sociology 48 (2007), 201

Case Law Court of Justice of the European Union, judgement of 11/09/2018  – C-68/17 –, ECLI:EU:C:2018:696, http://curia.­europa.­eu/ ECtHR, judgment of 27/11/2018  – 14,988/09 –, “Alejseyev et  al. v. Russia”, HUDOC

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Rights in Conflict Contents 20.1

Methods for Resolving Norm Conflicts – 366

20.2

Freedom of Action v. Freedom of Action – 368

20.3

Margin Human Right v. Freedom of Action – 369

20.4

 argin Human Right v. Margin M Human Right – 370

20.5

Freedom of Action v. Core Human Right – 372

20.6

 argin Human Right v. Core M Human Right – 374

20.7

Core Human Right v. Core Human Right – 376 Reading Recommendations – 382

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_20

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Chapter 20 · Rights in Conflict

Conflicts in the Field of Liberty and Human Rights The German Federal Constitutional Court developed a doctrine whereby courts must strive to identify a so-called “practical concordance” within all conceivable conflicts of law (BVerfGE 28, 244 [261]; 35, 202 [225]). In contrast, philosophical analysis shows that the appropriate solution of conflicts in the field of liberty and human rights depends on which position in this field is affected. There are three different positions: 1. the core area of human rights; 2. the margin area (“yard”) of human rights; and 3. the area of freedom of action.

Conflicts in the Area of Freedom of Action In a conflict between the freedom of action of a particular person and the freedom of action of another person, different ways of restriction are possible that make sure that the “choice of one can be united with the choice of another in accordance with the universal law of freedom” (Kant). Finding a practical concordance or, in the alternative, engaging in a process of balancing is always possible. The restriction has to be justified under the principle of proportionality (example: BVerfGE 80, 137, “Riding in the woods”).

Conflicts Between the Liberty Principle and the Margin Scope of a Human Right Behavior that falls under the protection scope of the margin area of a codified human right is to be regarded as having a higher rank than behavior that only falls under the protection scope of the principle of liberty. In such a conflict, the former is to be privileged over the latter (example: BVerfGE 104, 337, “Ritual Slaughter”).

365 Chapter 20 · Rights in Conflict

Conflicts in the Area of the Margin Scopes of Human Rights In the case of a conflict between a behavior of person A that falls under the protection scope of the margin area of a codified human right and a behavior of person B that falls also under the protection scope of the margin area of a codified human right, the conflict can only be resolved by looking for a practical concordance or, where this is not possible, to engage in a process of balancing. Neither conflicting interests is to be given preference over the other (e.g., right to privacy in public ./. freedom of the press – BVerfGE 101, 361).

Conflicts Between Freedom of Action and the Core Area of a Human Right In conflicts between freedom of action and the core area of a human right, the interest that is protected by the human right must always be preferred. There is no space for a process of balancing or for a practical concordance (e.g. using fine dust emitting vehicles ./. right to life – BVerwGE 161, 201).

Conflicts Between the Margin Area of a Human Right and the Core Area of a Human Right In conflicts between the margin area of a human right and the core area of a human right, the interest that is protected by the core area of a human right must always prevail. There is no space for a process of balancing or for a practical concordance (e.g., abortion cases – BVerfGE 88, 203).

Conflicts Between the Core Areas of Two Human Rights Conflicts between two interests when each of them is protected by the core area of a human right can very often be described as a conflict between the moral duty to do something and the moral duty to refrain from doing something. In these cases, the conflict can almost

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always be resolved by preferring the duty to refrain from doing activities that are contrary to the core content of a human right. This follows from the fact that the responsibility for actions weighs heavier than the responsibility for omissions. In the case of actions, we bear the responsibility not only for the immediate result of our action, but also for the further course of the world. In the case of an omission, we only bear the responsibility for the results of our direct behavior, but not for the further course of the world (e.g., terrorist attack by using an airplane with innocent passengers – BVerfGE 115, 118).

Moral Dilemmas It cannot be ignored that there are conflicts between the core areas of different human rights that cannot be resolved by the distinction of action and omission. Only in these cases do we face an insolvable moral dilemma. While legal dilemmas are supposed to be excluded from the legal system in principle, moral dilemmas cannot be excluded from morality because morality is developed in an inductive manner while law is developed in a deductive manner. A serious problem for the legal system arises if the entire morality of human rights is implemented in the legal system. The legal system can become incomplete where the morality of human rights embraces moral dilemmas.

20.1

Methods for Resolving Norm Conflicts

Now that there is greater clarity on human rights, on the one hand, and on the principles of liberty and equality, on the other hand, I would like to address the problem of norm conflicts in this final lesson. The solution of such conflicts depends on whether we must consider the right or the normative position in question as an absolute position or as a relative position.

367 20.1 · Methods for Resolving Norm Conflicts

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Freedom of action Margin of human right Core of human rights

..      Fig. 20.1  Three areas of freedom

During the course of the lecture we have distinguished between three different positions (see . Fig. 20.1): 1. the core area of human rights; 2. the margin area (“yard”) of human rights; and 3. the area of freedom of action.  

In case law, it is unfortunately not typical to distinguish between these three areas. Therefore, it is very often not clear which criteria the courts use to solve normative conflicts. The German Federal Constitutional Court only developed a very vague theory whereby courts must strive to identify a so-called “practical concordance” within all conceivable conflicts of law. This expression was first introduced in case law in two judgments of the Court of 1970 and 1973. Regardless of whether the conflict only implicates freedom of action or the margin or even the core of a human right, according to this doctrine the court must look for a compromise (fair balance) that allows the parties to realize their conflicting rights to optimum levels. Only in cases where such a compromise seems to not be possible should the court move to a process of balancing. The criteria of this process, and particular the question of the relative weight of each of the conflicting rights, remains open. The ECtHR has not yet adopt this doctrine. It has been, so far as I can see, only mentioned once in a dissenting opinion of 2007 by ad hoc judge Heinz Schäffer from Austria. By clearly distinguishing between the three areas, conflict decisions become much more transparent and comprehensible.

3 Different Areas of Protection

Practical Concordance

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20.2

20

Freedom of Action v. Freedom of Action

The first variant of a norm conflict is a conflict between the freedoms of action of two different persons. According to the famous teachings of Immanuel Kant, the freedom of action of any person is limited by the freedom of action of another person (see . Fig. 20.2):  

»» Law is the sum of the conditions under which the choice

of one can be united with the choice of another in accordance with a universal law of freedom.

“Riding in the Woods”

This principle, however, does not solve any particular conflicts because the same principle must be applied to the freedom of each person. Since the limits of the freedom of the latter is not determined it is not possible to determine the limits of the freedom of the former. Therefore, we need an authoritative decision. This is the task of the legislator and, in conflicts which are not regulated by statute, it must be the task of the judge. There is no fundamental difficulty because freedom of action is only protected by the principle of liberty. There is no absolute protection scope in this area. A classical case that fell in this area was the so-called “Riding in the Woods” case of the Federal Constitutional Court of 1989. Due to a law dating from 1980, riding in the woods was only permitted on paths designated by signposts as equestrian trails. The applicant raised a constitutional complaint on the ground that this legislation restricted his freedom of action without any justification. Riding in the forest did not violate the rights of others, did Freedom of action v freedom of action

..      Fig. 20.2  Freedom of action v. freedom of action

369 20.3 · Margin Human Right v. Freedom of Action

not damage the forest, and did not violate the constitutional order. The Court decided that prohibiting riding in the woods outside of the designated trails was in accordance with the Constitution. The basis of this decision came from a generalized and abstract statute which served a legitimate aim, namely avoiding the harm resulting from potential encounters between pedestrians and horses as well as the harm resulting from the loosening of the forest floor that is connected with riding. It is a typical regulation that unites the choice of one with the choice of another in accordance with the principle of liberty. The rule was further considered to be suitable, necessary, and adequate.

20.3

 argin Human Right v. Freedom M of Action

Another variant of conflicts of that kind refers to a conflict between the freedom of action of two persons, either. The difference to the first case is only that the interest of person A falls in the marginal protection scope of a codified human right while the interest of person B does not fall in the protection scope of a human right but only in the field of the liberty principle (see . Fig. 20.3). Although the margin scope of a human right only refers to freedom of action, we can say that activities that are cached by the margin protection scope of a codified human right or a  

Freedom of action v margin of human rights

..      Fig. 20.3  Freedom of action v. margin of HR

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20 Ritual Slaughter

fundamental constitutional right in general deserve an extraordinary and outstanding appreciation under positive law. Therefore, we have good arguments in favor of the determination that in such a conflict the interest within the margin protection scope should be favored. A good example for such a conflict is the “Ritual Slaughter” case of the Federal Constitutional Court of 2002. The conflict in this case, however, was not a conflict between two private interests, but a conflict between the private interest of a Muslim butcher in producing meat, which was recognized as halāl by the Muslim community, and the public interest in animal protection against cruel methods of slaughtering. The Act Concerning the Protection of Animals prohibited the slaughter of animals without numbing. The Act nevertheless granted an exception where it is necessary to meet the needs of members of certain religious communities that prescribe slaughter without numbing or prohibit the consumption of meat of animals that have been slaughtered with numbing. The applicant, a Muslim butcher, wanted to receive such a special permit. The BVerfG came to the result that the interest of the butcher was only protected by the liberty principle (Article 2 (1) GG) and not by the right to freedom of religion (Article 4 (1) GG), but that the freedom to slaughter was in this case somehow influenced by the right to religion, thus giving it a relative higher weight than the public interest in animal protection. The freedom to slaughter was, so to say, charged with more power because there was a certain connection to the right to freedom of religion. Importantly, the court could not find that the core of the right to freedom of religion had been infringed.

20.4

 argin Human Right v. Margin M Human Right

The graphic below (see . Fig.  20.4) shows the conflict between the margin of a human right and the margin of another human right. In such a case, we cannot say that one of the conflicting interests prevails over the other because both are charged with the same extraordinary weight. So, it is necessary to deal with this conflict in the same way as with conflicts between interests, which are covered only by the principle of liberty without any value-­ based charging. This approach is not problematic because  

371 20.4 · Margin Human Right v. Margin Human Right

20

Margin of human rights v margin of human rights

..      Fig. 20.4  Margin of HR v. margin of HR

interests that fall within the margin scope of a human right are not protected in the absolute. Although they are privileged by positive law, there is no moral need to privilege them. Typical cases include those that refer to the conflict between reputation and the freedom of classical media where the incriminating message that is the subject of the litigation is true. The freedom of the media belongs to the scope of the freedom of free speech, but it does not fall in the core of this right because the human right to freedom of speech does not protect privileged opportunities to receive attention—which the media clearly enjoys. Still, the interest in maintaining a good public reputation by hiding the constituent conditions of the reputation falls within the scope of the right to privacy, but not in the core of that right. So, it is possible to balance the conflicting interests. Is information about the person concerned relevant in order to develop a public opinion about important questions of political, economic, or cultural life or is the interest in the information solely based on pure curiosity? An example of this situation appears in the case of “Caroline of Monaco” of the Federal Constitutional Court of 1999. Another case of this type was decided recently by the Federal Constitutional Court. In 1982, the complainant was convicted of murder and sentenced to life. The magazine DER SPIEGEL ran articles on the case in its print edition, which identified the complainant by name. Seventeen years later, the publisher uploaded the articles to

“Princess of Monaco”

Right to be Forgotten

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the magazine’s online archive, where the articles are accessible for free and without restrictions. When the complainant’s name is entered into one of the common Internet search engines, the articles in question are listed among the top search results. In 2002, the complainant was released from prison. In 2013, the complainant lodged a constitutional complaint seeking to enjoin the magazine from disseminating any information on the criminal case containing his last name. He claimed a violation of his human rights and argued that the online articles associated him with his past crime and thus interfered and burdened his present desire to cultivate social relationships. The complainant did not contest that the murder trial from 30 years ago constitutes a significant event of contemporary history; he argued, however, that the public does not have a continued interest in his name tied to the conviction, even if it was 30 years ago. In its “Right to be forgotten I” judgment of 2019 the Court held the opinion that here two fundamental rights are in conflict and that therefore a balancing is required. From our considerations in lesson 10 and 11 it is clear that the cores of human rights were not involved here. The “right to be forgotten” refers to confidentiality. The information about the criminal past of the complainant should be hidden to avoid his exclusion from social ties. The right to free speech is not infringed by rules concerning the protection of confidentiality. Confidentiality, on the other hand, is not a matter of the right to privacy, because the fact that is supposed to be hidden, does not refer to private life on the backstage. It should be considered whether it is an aspect of an unwritten right to affiliation as a full member of society. I have some doubts whether the right to affiliation in general and the right to be forgotten in particular can be considered as human right. In any case, the complainant’s interest falls only in the margin of such a right and not in the core. Accordingly, a conflict exists only between the margin of the right to free speech and the margin of the right to affiliation. Dissolving this conflict is a matter of balancing or finding practical concordance and not a matter of absolute rights.

20.5

Freedom of Action v. Core Human Right

The graphic below (see . Fig.  20.5) shows the conflict between freedom of action, on the one side, and the core of a human right – i.e., the freedom of will – on the other  

373 20.5 · Freedom of Action v. Core Human Right

Freedom of action v core of human rights

..      Fig. 20.5  Freedom of action v. core of HR

side. There is no doubt that the interest which falls in the core of the protection scope of the human right must prevail. Accordingly, there is no basis for any process of assessment or balancing because the protection scope of the human right is absolute while freedom of action only enjoys relative protections. Consider the following example. Fine dust contains particles of different sizes that endanger health. Nevertheless, diesel soot contains ultrafine dust particles, which can penetrate deep into the lungs or even into the bloodstream. Fine dust exposure can lead to heart, circulatory, and respiratory diseases as well as cancer. Allergies can also be enhanced by fine dust. Elderly people and children are particularly vulnerable. The dramatic effect of fine dust particles has been known for a long time. The World Health Organization (WHO) estimates that of two million annual deaths worldwide caused by fine dust exposure, more than 300,000 die in Europe alone. Statistics further indicate that about 75,000 people die every year in Germany because of their exposure to soot particles. Soot particles are emitted by diesel motors. Driving a diesel vehicle is a realization of freedom of action. Killing people by driving a diesel vehicle is a violation of the right to life. So, there is a conflict between freedom of action, on the one side, and the right to life, on the other. In this conflict, there is no basis for engaging in any process of assessment or balancing. The right to

“Diesel Soot” Case

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life dominates and the ban of diesel vehicles, particularly in areas where people are living, is well justified. The German Federal Administrative Court (BVerwG) addressed this issue in 2018. Nevertheless, in reaching its decision, the Court only grappled with the interpretation and application of the relevant emission control law and not with any of the implicated human rights, much less the question of how conflicts between human rights and the principle of liberty should be resolved. But we should keep in mind that behind the regular administrative law stands exactly this question.

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20.6

Abortion Cases

 argin Human Right v. Core M Human Right

The solution in the case of a conflict between the core of a human right and the margin of a human right is exactly the same (see . Fig. 20.6). Of course, the interest that is protected by the core protection scope must prevail. This principle has been disregarded in the abortion cases. In  

Margin of human rights v core of human rights

..      Fig. 20.6  Margin of HR v. core of HR

375 20.6 · Margin Human Right v. Core Human Right

these cases, we have a conflict between the life of the unborn child (fetus) and the right to physical integrity of the mother. Although the pregnancy and stress of giving birth should not be considered torture or inhuman or degrading treatment, forcing the gestation of a child or the birth to a child can nevertheless be considered an intervention into the physical integrity of the mother. But this intervention only refers to the margin of the right to physical integrity and not to the core. Still, killing a human being is always an infringement of the core protection scope of the right to life. The US Supreme Court decided Roe v. Wade (1973) in favor of the physical integrity of the mother. This was only possible because the Court completely ignored the conflicting right of life of the unborn. The Court avoided making a decision on the basis of this conflict by simply overlooking the existence of the conflict. The Federal Constitutional Court (1993) noted the conflict, but resolved the matter with a less than convincing argument. The Court held that that abortion is unlawful but can nevertheless be tolerated where the pregnant woman exposes herself to certain procedures that provide her with information and advice intended to motivate her to not have the abortion. The violation of the core protection scope of a human right can never be a matter of tolerance. Such a doctrine ignores the absoluteness of the core of human rights. Some defenders of the legitimacy of abortion argue in a different way. They deny that the protection scope of the right to life is applicable to unborn fetuses or at least until the fetuses reach a certain stage of development. This argument relates directly to whether human beings could be considered persons when they have yet to develop the capacity of personhood and, therefore, can only be considered potential persons or proto-persons. Nevertheless, there is no relevant difference between potential persons and fully realized persons. We must recognize potential persons as persons, otherwise they will never become fully realized persons. The disregard or disrespect toward potential persons, therefore, refers to the personhood of persons, even if this potential has yet to be developed. This is why defenders of the legitimacy of abortion prefer to talk about “cell clusters” instead of potential persons. This change in the rhetoric makes it easier to displace the real conflict.

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20.7

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Core Human Right v. Core Human Right

The . Fig.  20.7 shows the hard case of the conflict between the core of a human right of person A and the core of a human right of person B. Each side claims absolute protection. Neither is reducible. An assessment or balancing procedure is therefore not possible. How should we deal with such a conflict? First, we must distinguish between two kinds of cases. The first kind of cases is epitomized by the fact that the obligor either stands in front of the duty to refrain from doing something or the duty to do something. The second kind of cases relates to situation where the obligor must either do something in favor of person A or do something in favor of person B. Accordingly, I want to begin by discussing the first variant. I will give you an example from German case law. The Federal Constitutional Court had to rule on the constitutionality of a statute that authorized the Minister of Defense to give the command to shoot down an airplane  

Doing v. Omitting

Core of human rights v core of human rights

..      Fig. 20.7  Core of HR v. core of HR

377 20.7 · Core Human Right v. Core Human Right

if there is some evidence that the plane has been commandeered by terrorists and will be used as a bomb in order to kill a large number of people (“9/11 scenario”). The statute was essentially based on the Utilitarian idea that in such a situation the life and happiness of the passengers of the plane have less weight than the life and happiness of the people that form the targets on earth because the latter group is larger than the former group. The Federal Constitutional Court (2006) voided the law by arguing that human dignity does not allow an assessment of the value life in terms of quantity. The life of the passengers would be of the same value as the life of the people on earth. Regardless of the reason, it is impermissible to kill even a single person. For her right to life is absolute and is never up for disposal. It is obvious that this argumentation is not complete. The fact that both the value of the passengers on board and the value of the people on earth are identical does not provide a hint as to how the conflict should be decided. We get a hint only if we recognize that the conflict consists of the conflict between the duty to refrain from killing the passengers and the duty to do something, namely to rescue the people on earth by killing the passengers. In the most cases, there are very good arguments in favor of the opinion that our moral responsibility concerning our affirmative actions is relatively higher than the moral responsibility concerning our omissions. Refraining from doing something only amounts to not disturbing the course of the world. We do not shape what happens and we do not take responsibility for the course of the world. If we do something, we initiate or steer the course of the world. By doing so, we become responsible for the course of the world. This is risky if our control over the consequences of our actions is incomplete and full of gaps. In this case, we assume a responsibility that we cannot actually bear. There is still another argument in favor of the duty to refrain from doing something. The moral duty to do something always refers to a duty to support or to rescue someone else. To help or to rescue someone else is of course a moral merit. But an obligation to help or to rescue can only refer to the application of means which are in accordance with morality. We cannot be morally obliged to support someone else if the support is only possible by immoral means. Now, I want to add some remarks about the second variant of cases. These cases are epitomized by the fact

Moral Dilemmas

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that there is no choice between doing and refraining from doing something. Indeed, these cases only concern the duty to do something. Take the following example. Unborn twins are connected to each other in the uterus of the mother. Both will die if they are not separated. The doctor can carry out the necessary operation, but it will cause one of the children to die. The doctor is faced with the question of which one he should rescue and which one he should kill. In this case, it is beyond any doubt that the doctor is obliged to do something, namely to rescue at least one of the children. This is better than doing nothing. But he must decide which child he should rescue and which one he should kill. Does human rights law give an answer as to what should be done? If we concede that both children hold the right to life, we face a serious dilemma. These kind of dilemmas also force us to confront another serious problem: the possible existence of such dilemmas put into question very important elements of the classical legal theory. Most legal theorists agree that a legal order must be free from conflicts that cannot be resolved though legal means (Dworkin, Alexy; see lesson 18). If there are two contradicting claims and each of them are legitimated by a legal rule, there must be another legal rule according to which the conflict can be decided. I think that this doctrine of the completeness of the legal order can only be maintained if human rights figure out of consideration. In former times, legal regulations could always be characterized by moral principles. In the case of a conflict, however, the law always had the last word. The law could defer moral demands so that the unity, completeness, and consistency of the legal system could be maintained. Nevertheless, this is no longer possible if we introduce the rule of human rights into the corpus of the legal order. In order to understand the problem, we must consider the different characteristics of law and morality (see . Fig. 20.8). The modern legal system starts with general and abstract rules, which are laid down in the constitution. Authorized institutions like the parliament, the judiciary, or administrative bodies have the task of concretizing the corpus of all the single detailed rules and regulations into a coherent legal system. So, we can say, that the legal system is developed in a deductive manner. In other words, it is based on an intellectual construction that aims to ensure  

Completeness of Law

379 20.7 · Core Human Right v. Core Human Right

Law

Morality 3rd level moral rule

Constitution

1st level moral rule

1st level moral rule

1st level moral rule

deductive

1st level moral rule

inductive

2nd level moral rule 2nd level moral rule

Law 1

Law 2

Law 3

..      Fig. 20.8  Induction of morals/deduction of law. (Created by author, © crowd: Sophie Reinisch; © Man Icon: Sophie Reinisch)

that the system includes a legal answer to every possible future legal conflict. This is necessary because in the case of conflicts, parties are supposed to call a court, which will then have to decide the case. The court, however, can only decide in favor of one party or the other party. But the court cannot avoid giving an answer, because this would be the end of the monopoly of power and the end of social peace. Therefore, it is absolutely necessary for the proper functionality of the legal order that it involve conflict rules for any kind of conflict. Modern legal systems are supposed to be complete it this sense. Legal dilemmas have to be excluded. Nevertheless, as we have seen before, human rights are primarily moral rights. As codified rights, they are moral rights that are transferred to legal rights. It is well known among the philosophers who deal with the philosophical analysis of morality that moral systems can be and mostly are incomplete (Williams). They can have serious deficiencies. In the face of such a deficiency, morality does not teach us what we should do in a given situation. In situations of that kind, we are faced with a moral dilemma. So, according to legal theory, legal dilemmas do not exist because the legal system is always complete and consis-

Incompleteness of Morality

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Legal Dilemmas?

tent. According to the theory of morality, moral dilemmas exist because the moral system is always incomplete and sometimes inconsistent. What is the reason for this difference? Moral rules are not issued by an almighty and omniscient divine instance or by a parliament who can prescribe the appropriate behavior for all future situations and conflict. Instead, moral rules are incrementally developed over a long period of time, one case at a time. It is a similar to the development of case law in the English Common Law system. Moral systems are not constructed from the top to the bottom—that is, from general principles to detailed rules and recommendations. Indeed, the opposite is true. The moral system initially consists of detailed and particular rules and recommendations that have been proven in the practice of human life. For the purpose of transmitting these moral experiences and knowledge from one generation to the next, it is useful to extract more abstract and generalized rules from these materials in order to make it easier to teach it and to learn it. Thus, morality moves from the particular to the more generalized and abstract. This process ultimately leads to highly sophisticated and very general and abstract moral rules, as is evidenced by Kant’s Categorical Imperative, the Golden Rule, or the principle of human dignity. Considering that morality is developed in an inductive manner, it is possible that there are situations in life for which the given set of moral rules does not provide an answer as to what should be done. In such a situation, we speak of moral dilemmas. So, we recognize that the idea of the completeness of a modern legal system can perhaps no longer be maintained when it comes to the fusion of an entire moral system with the legal system and if the moral system is considered as having a guiding role. This is exactly what happens when the entirety of moral human rights is transmitted into the corpus of positive law through codification. One of the most relevant consequences of this transmission is that the legal order has to face moral dilemmas which become legal dilemmas that cannot be solved by legal instruments. If we are faced with a conflict between interests that are both protected by the core protection scope of human rights, it is conceivable that it is not ­possible to find a legal solution to the problem. Whatever we do will always be contrary to the value of human dignity. Whatever we do will always be unlawful.

381 20.7 · Core Human Right v. Core Human Right

This problem is discussed by legal philosophers as well as by other lawyers and law academics. For example, the Landgericht Frankfurt interpreted the case of Daschner as a conflict between the core protection scope of two human rights, namely the right to life of an innocent boy, who was kidnapped, and the right of the offender to not be tortured. Magnus Gäfgen abducted Jakob von Metzler, the young son of a banker. In the wake of the police investigation, Gäfgen was arrested. He admitted the abduction, but was not ready to state the place where he had the boy. Fearing for the boy’s life, deputy police president Daschner threatened Gäfgen with torture in order to find out where the victim was being kept. Gäfgen disclosed the site. But when the police arrived at the location, they discovered that the boy had died sometime before Daschner had been threatened with torture. Daschner was accused and the Landgericht Frankfurt sentenced him to probation and charged him with a fine of 10,800 EURO. The Court recognized that the ban on torture is absolute and that there is no justification to ever torture another, even if it is considered necessary to save the life of an innocent child. (In fact, there was nothing to save because the boy was already dead.) Nevertheless, the Court also had a certain sympathy for Daschner’s behavior. (Comparatively, a judgement of the Supreme Court of Israel of 1999 showed much less sympathy for torture despite the Israel Security authorities’ attempt to justify it in situations involving significantly more extreme threats to life and limb to the people of Israel.) The Court in Daschner, therefore, imposed an extremely low punishment that was actually seen as only having symbolic value. In the eyes of the Court, the case involved a moral dilemma that could only be answered by a kind of symbolism and not by a serious answer from penal law. I think there was no need to consider this case as a moral dilemma because the conflict can be resolved on the basis of the different moral responsibility between actions and omissions. But this is another question. Here, I want to only focus on the solution that the Court found for a case that was considered a moral dilemma. And the answer was: we can only react to moral dilemmas in a symbolic way. This solution can, of course, be contested and should be made a matter of further discourse. The end of this lesson, and thus the end of this entire lecture, confronts us with questions instead of answers. Nevertheless, I think this is appropriate for a philosophi-

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cal lecture. Philosophy teaches us to ask the right questions. It does not guarantee that we will reach satisfactory answers. Therefore, philosophy is a never ending inquiry. ??Do you still remember? 20.1 What is meant by “practical concordance”? 20.2 The application of the practical concordance approach is appropriate in order to decide conflicts on the level of the liberty principle and on the level of the “yard” of codified human rights. Why? 20.3 Is there a possible standard of decision making in cases of conflicts on the level of the core of human rights? 20.4 Unity, completeness, and consistency are the three characteristics of a legal norm order. Explain why. Why are these characteristics in danger if a legal order is to subjected to the rule of human rights?

For the answers, see 7 Chap. 21.  

Reading Recommendations Brems, Eva (ed.): Conficts between Fundamental Rights. Cambridge 2008 Gewirth, Alan: Are there Any Absolute Rights? The Philosophical Quarterly 31/122 (1981), 1–16 Gewirth, Alan: There are Absolute Rights. The Philosophical Quarterly 32/129 (1982), 348–353 Kant, Immanuel: Metaphysics of Morals, Introduction to the Doctrine of Right. 1798 (§ B) McConnell, Terrance: Moral Dilemma. In Stanford Encyclopedia of Philosophy, 2018. https://plato.­stanford.­edu/entries/moral-­ dilemmas Williams, Bernard: Ethical Consistency. In B.  Williams: Problems of the Self. 1973, pp.166

Case Law BVerfG, judg. of 26/05/1970, BVerfGE 28, 244 [261] (“Dienstpflichtverweigerung”) BVerfG, judg. of 05/06/1973, BVerfGE35, 202 [225] (“Lebach”). BVerfG, judg. of 6/6/1989 – 1 BvR 921/85 –, BVerfGE 80, 137 (“Riding in the woods”); BVerfG judg. of 28.05.1993 – 2 bvF 2/90 –, BVerfGE 88, 203 (“Abortion”). English: http://www.­bverfg.­de/e/fs19930528_2bvf000290en.­html BVerfG, judg. of 09/11/1999  – 1 BvR 653/96 –, BVerfGE 101, 361 („Caroline von Monaco II) BVerfG, judg. of 15/01/2002  – 1 BvR 1783/99 –, BVerfGE 104, 337 (“Ritual Slaughter”). English: http://www.­bverfg.­de/e/ rs20020115_1bvr178399en.­html

383 Reading Recommendations

BVerfG judg. of 15/02/2006  – 1 BvR 357/05 –, BVerfGE 115, 118 (“Aviation Security Act”). English: http://www.­bverfg.­de/e/ rs20060215_1bvr035705en.­html BVerfG, judg of 06/11/2019 – 1 BvR 16/13 –, („Right to be forgotten I“). http://www.­bverfg.­de/e/rs20191106_1bvr001613.­html Press Release English: n.d. https://www.­bundesverfassungsgericht.­de/ SharedDocs/Pressemitteilungen/EN/2019/bvg19-083.­html BVerwG, judg. of 27/02/2018 – 7 C 30/17 –, BVerwGE 161, 201 („fine dust“) ECtHR, judg. of 15/11/2007 – 12,556/03 –, Pfeiffer v Austria (dissenting opinion by ad hoc judge Heinz Schäffer, Austria), HUDOC Landgericht Frankfurt am Main, judg. of 20/12/2004 – 5/27 KLs 7570 Js 203,814/03 – NJW 2005, 692 US Supreme Court, judg. of 22/01/1973 Roe v Wade [410 U.S. 113] Supreme Court of Israel, judg. of 06/09/1999 concerning the legality of the general security Service’s interrogation methods https://www.­ law.­umich.­edu/facultyhome/drwcasebook/Documents/Documents/ Public%20Committee%20Against%20Torture%20v.­%20Israel.­pdf

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Answers to Chapter 1 – 387

21.2

Answers to Chapter 2 – 387

21.3

Answers to Chapter 3 – 388

21.4

Answers to Chapter 4 – 388

21.5

Answers to Chapter 5 – 389

21.6

Answers to Chapter 6 – 389

21.7

Answers to Chapter 7 – 390

21.8

Answers to Chapter 8 – 390

21.9

Answers to Chapter 9 – 391

21.10 Answers to Chapter 10 – 391 21.11 Answers to Chapter 11 – 392 21.12 Answers to Chapter 12 – 393 21.13 Answers to Chapter 13 – 393 21.14 Answers to Chapter 14 – 394

© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2_21

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21.15 Answers to Chapter 15 – 394 21.16 Answers to Chapter 16 – 395 21.17 Answers to Chapter 17 – 395 21.18 Answers to Chapter 18 – 396 21.19 Answers to Chapter 19 – 396 21.20 Answers to Chapter 20 – 397

387 21.2 · Answers to Chapter 2

21.1  Answers to Chapter 1 vv 1.1. hermeneia = interpretation Any interpretation is based on a certain preunderstanding of the text. You must already know something about the meaning of the text before you can get further knowledge about the meaning of the text. 1.2. Naturalistic philosophy = natural science without empirical means Analytical philosophy  =  Analysis of (basic) concepts in order to improve the understanding of our language and our thoughts. 1.3. Source of power over fellow humans by steering their behavior for the sake of one’s own interests. Those from whom the fulfilment of the right is required must believe to be bound (obliged) by the right. 1.4.  Generality (all humans are holders of human rights); Unavailability (rights are a subject of recognition, not of creation); Absoluteness (human rights are “inalienable”); Morality (rights are a matter of conscience, not of punishment); Universality (“common faith of all peoples of the UN”); Super-Positivity (“protected by law”, not made by law).

21.2  Answers to Chapter 2 vv 2.1. Utilitarianism refers to “the greatest happiness for the greatest number.” Utilitarianism is incompatible with the idea of subjective rights because it does not allow for the interests of a particular person to triumph over the equal interests of a multitude of persons. 2.2. Illogically concluding norms from facts (from be to ought). 2.3. The idea of a teleological world order is either based on a naturalistic fallacy (concluding norms from factual tendencies) or on a conception of the meaning of life that leads to an infinite regress.

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2.4. Methodological Individualism: any kind of moral or scientific theory has to be addressed to and can only be approved by individual human persons, because only individual persons are endowed with reason and conscience. Normative Individualism: norms can only be justified by the individuals who should be bound (obliged) by the norm.

21.3  Answers to Chapter 3 vv 3.1.  Individualism, contractual autonomy, natural state (original position) 3.2. They differ in the description of the state of nature. 3.3. Referring to a legislation of God leads to the question of the legitimacy of God’s legislation. Answering this question always leads to an infinite regress. 3.4. The idea of a contract entails the freedom to close or to not close the contract and even the opportunity to cancel it. This is not compatible with the attributes of unavailability, absoluteness, and generality of human rights.

21.4  Answers to Chapter 4 vv 4.1. Dignity originally refers to the social status and value of the nobility and serves as the distinction between higher ranked personalities and the rest of mankind. 4.2. The French and German court decisions concerning the dwarf tossing cases are based on a heteronomic understanding of human dignity. 4.3. Human dignity refers to a position and status of human individuals which are connected with strong duties. Someone who does not fulfil these duties loses their status of dignity. 4.4. The competence or ability to create one’s own free will. The status of dignity does not depend on the content of the will. It does not matter whether a will is directed to good or evil.

389 21.6 · 21.6  Answers to Chapter 6

21.5  Answers to Chapter 5 vv 5.1.  Intrinsic values (fancy price): preferring something as such, value scale = love, liking Extrinsic values (market price): supply and demand, value scale: exchangeability Absolute value (dignity): value scale: personal identity 5.2. The awareness that I am and who I am. I am someone who is the author of my own free will and the source and last reference of all my evaluations. Opposite: being an instrument in the hand of others. 5.3. Personhood is the competence of evaluation. Without personhood nothing can have any value. So, personhood is the required condition of any evaluation. Regardless of what our desires and wishes may be, we have fundamental interest in making evaluations. Only on the basis of this capacity can we identify ourselves as authors of our will. 5.4. The personal identity of any person and the personal identity of any other person are equiprimordial like the two sides of the same coin. So, we can respect our own personhood only if we respect the personhood of others. If we do not respect the personhood of others, then we lose respect toward our own personhood.

21.6  Answers to Chapter 6 vv 6.1. Borderline Personality Disorder (BPD) Post-Traumatic Stress Disorder (PTSD) 6.2. Yes. According to the results of baby research and developmental psychology, babies have by nature a sense for personhood, so that they can scan their environment for personhood and fix their attention if they recognize something in their environment as a person. 6.3. Yes. There is some evidence for this hypothesis. Someone who ignores and disregards the personhood of others will feel shame. Shame implies a tendency for suicide. Alternatively, the person can

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avoid the feeling of shame by replacing it with the feeling of guilt. The feeling of guilt is connected to severe feelings of psychical pain and regret. The person can also avoid feeling either shame or guilt by replacing both feelings with neurotic symptoms. Neurosis consists in a kind of psychical displacement. It is “the method of avoiding non-being by avoiding being.” 6.4. In order to distinguish between persons “with dignity” and persons “without dignity,” you must use a standard other than that of personhood. This standard applies to all persons so that all of them are regarded as having no dignity.

21.7  Answers to Chapter 7 vv 7.1. v [has a right] toward x on y of z. v = holder of the right x = obligor y  =  the kind of acting (respect/protection/ support) z = protection scope 7.2. According to Kant, an obligation is a coercion of the will. He distinguishes between external and internal coercion. External coercion is a sanction by the state or fellow humans. Internal coercion consists in a bad conscience. 7.3. Obligations are values of second order. In conflicts related to first order volitions, the person feels bound to the second order volition. This feeling of being bound can be considered an obligation toward oneself. 7.4. Human beings confer rights to others in order to seek help in fulfilling those obligations that the former considers as absolute.

21.8  Answers to Chapter 8 vv 8.1. Development and maintenance of personhood. 8.2. Physical violence leads to a loss of control over one’s own body and one’s own behavior. The experience of the loss of control leads to a stepwise devaluation of the willingness to produce one’s own free will. It simply makes no sense to produce one’s own will on the basis of one’s own consid-

391 21.10 · 21.10  Answers to Chapter 10

erations and reflections if it is from the beginning guaranteed that the will that is produced cannot be transformed into meaningful action. 8.3. It is the criterion of cruelty. This criterion is mentioned in many international human rights codifications, but not in Article 3 ECHR. Cruelty means an intentional act by which severe physical or mental pain or suffering is inflicted. 8.4. Inhuman treatment: a treatment that causes intense physical and mental suffering, whether or not combined with bodily injury. Torture: aggravated and deliberate form of inhuman treatment.

21.9  Answers to Chapter 9 vv 9.1. Habeas corpus rights cannot be considered human rights. They are merely procedural rights, which are based on the rule of law and not on the principle of human dignity. 9.2. It is caused by the specific characteristics of a total institution. These institutions reduce the opportunity to make meaningful decisions about one’s own life. This weakens the ability of the inmates to lead their life by according to their own considerations and reflections and finally destroys the ability to create free will. 9.3. The function of Article 10 ICCPR is to ensure decent living conditions under detention. Nevertheless, the protection scope is not sufficiently precise. Furthermore, it seems to refer to the same protection scope as Article 7 ICCPR (ban of torture and inhuman and degrading treatment) and is thus redundant. 9.4. No. The freedom to travel from one place inside a country to another is not a required condition for the development and maintenance of personhood.

21.10  Answers to Chapter 10 vv 10.1. Defending the freedom of the will against manipulation. 10.2. The protection scopes of many codified human rights go beyond what can be derived from the principle of human dignity. In these cases, it

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makes sense to distinguish between the “core” of a human right  – this is the protection scope that refers to the protection of personhood – and the “yard” or margin of the right, which refers to freedom of action. Rights concerning the “yard” can be restricted within the frame of the codified restriction clauses. Rights concerning the “core” are absolute and may not be restricted. 10.3. The communication rights do not protect privileged positions for the spreading one’s own opinions and convictions. The teacher can make use of his rights by spreading his opinions and convictions outside the school. 10.4. The performative contradiction is a contradiction between a proposition and the speech act by which the proposition is expressed. Example: P asserts that all assertions are false.

21.11  Answers to Chapter 11 vv 11.1. The core function of the privacy rights is defending freedom of will against self-alienation by fixation on role-identities. The privacy rights refer to the protection of an authentic will-making process by ensuring a sphere of life in which persons are not forced to display a role-identity because this sphere is hidden from public control. 11.2. A person who is forced to get married is deprived of the opportunity of establishing an intimate relationship with a sexual partner while also being forced to live with a partner with whom there is no intimate relationship, such that the person concerned is permanently forced to perform a roleidentity in front of the spouse. 11.3. Social relationships of a person to other members of the society outside the walls of hidden intimate relations always establish a position that forces the person to display a role-identity. Privacy refers to a sphere of living in which it is not necessary zplay a role-identity but to behave as one really is. 11.4. The human rights are as such a moral standard. There is no morality that can restrict them.

393 21.13 · 21.13  Answers to Chapter 13

21.12  Answers to Chapter 12 vv 12.1. In the context of the treaty of Westphalia (1948) 12.2. Conscience is (1) the knowledge of the standards of morality and (2) the conviction to be bound to them. 12.3. The core function of the right to freedom of conscience is defending freedom of will against a feeling of moral shame from which the respective person can only escape by suicide or neurotic selfalienation. 12.4. The right to freedom of conscience can be considered a human right because the coercion to commit actions which the agent considers evil leads to the agent’s fixation on a personality that he cannot accept. This leads to a state of self-negation which includes the drive to self-destruction. These tendencies not only affect personality, but also personhood.

21.13  Answers to Chapter 13 vv 13.1. The core function of the right to freedom of religion is the protection of access to the religious means of resilience against uncontrollable negative life experiences (senseless suffering, senseless injustice, the expectation of one’s own death). 13.2. Religion is the entirety of all techniques that allow a person to maintain the capacity of authentic self-determination and to avoid self-alienation in situations of senseless suffering, senseless injustice, or the expectation of the own death. 13.3. The religious dualism refers to the fact that religious persons share two different worldviews: (1) the profane view and (2) the sacral view. The profane view shows the world as a system of different parts which can be analyzed. The sacral view shows the world as a whole. 13.4. The freedom to believe, to express or share religious beliefs, to organize or to attend religious assembles, and to build or join religious associations is already protected by the communication rights. The freedom not to be forced to cooperate contrary to one’s own religiously influenced conscience is already protected by the general right to freedom of conscience.

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21.14  Answers to Chapter 14

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vv 14.1. It is not possible to harm a person by killing her. For before the act of killing is committed, the person is still alive and not harmed with regard to her life. When the act of killing has already been committed, there is nobody who could suffer from the deprivation of life. For the person that has been killed does not exist anymore. She cannot be in an inhuman state of living. 14.2. The function of the right to life is not to protect persons against being brought to an inhuman state of living by an act of killing. Instead, the function is to protect all members of society from a general devaluation of their own existence. The existence of every person may not stand under the conditions of social or private preferences of others when the consciousness of the absolute value of one’s own existence as a person is ensured. 14.3. The death penalty cannot be justified because it disrespects the absolute value of personhood. 14.4. Assisted suicide or acts of killing on demand generally do not violate the right to life because they are committed in accordance with the will of the person who wants to die.

21.15  Answers to Chapter 15 vv 15.1. They depend on the existence of related social institutions. Establishing of such social institutions depends on the resources and political decisions related to the allocation of financial means. 15.2. According to the protestant ethics of capitalism (Max Weber), labor is considered a value as such (intrinsic value). But it is only a means of life. Under favorable conditions it is possible to lead a decent life without working. It is only crucial that a person earn a sufficient income. 15.3. Duties to refrain from doing something only demand doing nothing. To do nothing does not require a large amount of effort. In most cases, it requires no effort at all. In contrary, duties to do something requires a stepwise increasing amount of efforts. The efforts can come in conflict with the

395 21.17 · 21.17  Answers to Chapter 17



sphere of autonomy that is required in order to lead a life based on an own free will. 15.4. Yes. If social institutions that are dedicated to the purpose of ensuring dignified living conditions exist, then excluding those persons that are in need from these institutions can be considered inhuman or degrading treatment or perhaps a violation of one of the other classical human rights.

21.16  Answers to Chapter 16 vv 16.1. No. There is no codified human right to asylum. International asylum law is primarily codified in the Geneva Refugee Convention of 1951. This Convention does not contain a substantive right on asylum. 16.2. The refoulement ban refers to the prohibition of deporting an alien to a country where he/she has to face a serious deprivation of goods which are protected by human rights. The refoulement ban is an integral part of every human right. 16.3. No. There is no moral human right for refugees who stay inside a potential host country because refugees in the inland are sufficiently protected by the refoulement ban. 16.4. No. There is no moral human right for refugees who stay outside the borders of the potential host state because there are only imperfect duties of potential host states toward refugees outside of the area of their effective power. Imperfect duties do not correspond to substantive rights.

21.17  Answers to Chapter 17 vv 17.1. Property is a pure juridical notion. It denotes a bundle of rights and duties that someone has in relation to certain material or ideal items. 17.2. The argumentation of John Locke suffers from a quaternio terminorum fallacy. While a regular syllogism operates with three concepts, in the case of a quaternio terminorum, it operates with 4 concepts. Nevertheless, this remains hidden because two of these concepts share the same expression.

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17.3. No, it is a pure juridical construction based on positive law. The positive law defines (1) the scope of objects to which property rights can be assigned, (2) the subjects who can hold property rights, (3) how property rights can be acquired, and (4) the rights and duties, which define the content of the property rights. 17.4. First generation: liberal rights, second generation: social rights, third generation: collective rights. Collective rights are rights where the holders of the right are not human individuals but human collectives. Collectives can never be a holder of human rights because they are not persons.

21.18  Answers to Chapter 18 vv 18.1. The classical definition of the principle of liberty is given in Article 4 of the French Declaration of the Rights of Man and Citizen of 1789. 18.2. The principle refers to freedom of action, not to freedom of will. 18.3. Rules are strict norms. According to a rule, particular factual circumstances give way to concrete legal consequences. Conflicts between rules lead to the invalidity of the conflicting rules unless there is another rule which decides which of the conflicting rules should prevail. Comparatively, principles only present particular interests that are to be taken into consideration if it comes to a conflict with other interests. Conflicts between different interests that are protected by the principle of liberty are to be resolved by seeking a compromise. 18.4. No, it does not make sense to call the principle of liberty part of supra-positive law. The principle is an element of the rule of law and valid only in the frame of a given positive legal order.

21.19  Answers to Chapter 19 vv 19.1. They add nothing but repeat only what already is written in each of the particular human rights, namely that “everybody has the right to …” or “No one shall be treated …”.

397 21.20 · 21.20  Answers to Chapter 20







19.2. The expression “equal” in “equal human rights” refers to the generality of human rights. Every human person is a bearer of human rights because she is a person and not because she has to be treated equally with other persons. 19.3. The principle of equality refers to the fair sharing of burdens and benefits of cooperation. It is to apply only in cases of distribution of the results of cooperation among the participants of the respective cooperating community. 19.4. No, there is no such right because human rights protect against a damage to personhood and not against pure insult. Nevertheless, a social atmosphere where it is generally accepted to discriminate against people on grounds of sex, “race,” and the like leads to the weakening of the ability to maintain one’s own personhood. It also leads to a social climate in which it becomes more and more likely that human rights will be violated. Therefore, the state has the duty to ban acts of discrimination in order to avoid such a risky climate.

21.20  Answers to Chapter 20 vv 20.1. In the case of a conflict between two or more competing claims the practical concordance approach demands seeking a compromise by which the conflicting interests have been optimally satisfied. 20.2. Claims on the level of the liberty principle and on the level of the yard of human rights are always relative rights. Their function is to optimize the range of the freedom of action. Therefore, it is possible to restrict this range for the sake of a compromise. 20.3. If the conflict offers the choice between refraining from harming someone by leaving others without support or to supporting someone by harming someone else, it is appropriate to choose the option of the omission. 20.4. A legal norm order has to be the only one and it has to be complete and consistent in order to ensure that legal conflicts between members of the legal system can always be decided by a court on the basis of the law. Unity, completeness, and consistency are ensured by the fact that the legal order

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is developed by deduction (from the constitution to the individual legal decision). This effect is at risk if the corpus of human rights has been introduced in the legal system because this causes the predominance of morality over positive law. The system of moral rules is developed in an inductive manner. It can therefore be incomplete or inconsistent. Therefore, the moral rule of the legal system can lead to legal dilemmas that cannot be decided on the basis of positive law.

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© Springer Nature Switzerland AG 2020 P. Tiedemann, Philosophical Foundation of Human Rights, Springer Textbooks in Law, https://doi.org/10.1007/978-3-030-42262-2

401 Index

Index A Absoluteness  3, 10–14 Absolute right  255, 260, 265, 266 Act –– affirmative 128 –– of omission  128

Action  273, 274, 284–289, 291, 292, 364–369, 372, 373 African Human Rights Convention  297 Alexy, Robert  339, 340, 342, 378 Althusius, Johannes  47 American Conventions of Human Right 297 Aquina, Thomas  25, 33 Arendt, Hannah  62 Aristotelianism  24–25, 27, 32, 34–36 Aristotle  24, 31, 33, 34, 37–39 Asylum 296–310 Austin, John L.  85 Authenticity  81–83, 90, 93, 94 Averoes 33

B Baby research  101, 109, 110 Banjul Charter  297, 298, 326, 327 Ban on torture  381 Bentham, Jeremy  24, 27 Binding power  8, 11, 17 Biographical identity  228–229 Borderline personality disorder  101 Brandeis, Louis D.  202 Burka ban  67 BVerfG  208, 216, 222, 364–366, 370

C Calvin, Johannes  281 Capability approach  36 Capitalism  272, 281, 282 Cases  141, 144, 146, 149, 153, 154, 158, 161–163, 166–170 –– –– –– –– –– ––

“Abortion I,”  375 “Caroline of Monaco II,”  371 “Daschner,” 381 dwarf tossing case  67, 77 “Elfes 336 “Fine dust,”  373

–– –– –– –– –– –– –– –– –– –– –– –– –– ––

Greek case  141, 151, 152 Kakaris v. Cyprus  168 “Katz v. US,”  202 “Lochner v. New York” 334 M.S.S. v. Belgium and Greece  273 Muslim headscarf   247–250 Olmsstead v. US  202 Princess of Monaco  206 “Riding in the woods,”  364, 368–369 “Right to be forgotten I,”  372 “Ritual Slaughter,”  364 “Roe v. Wade,”  375 “Soering v. UK,”  264, 308 “Wackenheim v. France  70, 71

–– –– –– –– –– –– –– –– ––

of of of of of of of of of

CAT See Cruel Inhuman or Degrading Treatment and Punishment; UN Convention Against Torture Catholicism 70 Charter of the United Nations (UN Charter)  66, 68–70, 74, 75 China 69 Christendom  33–34, 234, 236, 237, 239 Cicero, Publius Tullius  67, 71–72 Circle of Deprivation of Personhood  148, 154 Civic right  181 Coing, Helmut  326 Commandment  2, 7, 8 Common property approach  302 Communication rights  174, 176, 177, 182–185, 187–189, 191, 195, 232, 234–236, 248 Conscience  3, 9, 11, 216–230, 232, 237, 238, 250 Conseil d’Etat  71 Constitution Afghanistan  333 Belgium  220 Bosnia and Hercegovina  332 Brandenburg  126, 127 France  256 Germany  126, 260, 335, 336 Malawi  127 the Paulskirche  221 Prussia  221

Contractual autonomy  44, 48, 50, 54, 57 Conviction  174, 179–181, 189, 190, 195 Cooperation  175, 183 Correspondence  200, 203, 209 Cosmos  25, 32

402 Index

Cruel Inhuman or Degrading Treatment and Punishment  140, 143, 144, 147 Cruelty  140, 141, 147, 148, 150, 153, 154 Cultural life  270, 271, 275, 278, 280 Cyrus-Cylinder 4

D Data protection  200 Death penalty  256, 257, 264 Defamation 188 Democracy  175, 181, 187, 192 Deontological approach  273, 284–289 Deontological ethics  272, 273, 288 Detention 158–171 Developmental psychology  101, 109 Difference-principle  46, 59, 60 Dignity  66–77, 80–97 Discrimination  352–353, 356–360 Discrimination ban  350, 353, 358, 360 Displacement  224–226, 229 Dissociative Identity Disorder  141, 149 Duty to rescue  297, 310 Dworkin, Ronald  330, 339, 340, 342, 378

E ECHR See European Convention of Human Rights EComHR See European Commission of Human Rights Economic wellbeing of the country  203, 211 ECourtHR See European Court of Human Rights ECtHR  168, 200, 206–210, 249, 250, 264, 273, 291, 308 Education  270, 271, 275, 277–280, 283, 289 Embryo 116–117 Enlightenment  216, 219–221 Ensemble theory  67, 72–73 Epicurus of Athen  24, 27 Equality 349–360 Equiprimordiality  82, 83, 94–97, 100–103, 105, 108, 112, 114–118, 255, 266 Ethics 27 EU Charter of Fundamental Rights  19, 353, 359 European Charter for Regional or Minority Languages 326 European Commission of Human Rights (EComHR)  141, 151

European Convention of Human Rights (ECHR)  140–145, 147, 151–153, 158–165, 168, 170, 198, 202, 203, 207–210, 249, 250, 256, 257, 264, 265, 274, 278, 291, 306–308, 317–326, 352, 353 European Court of Human Rights (ECourtHR)  71, 141 European Union  303, 338 Existence  254–256, 258–260, 265 Explication  3, 15–17

F Facio, Bartolomeo  67, 72 Fair remuneration  270 Fair working conditions  270 Falsification 113–114 Family  199, 203, 206–208, 210 Federal Administrative Court  374 Federal Constitutional Court (Germany)  208, 212, 221 –– See also BVerfG

Fichte, Johann Gottlieb  261 Fischer, Gottfried  107 Foot, Philipp  28 Forschner, Maximilian  87 Framework Convention for the Protection of National Minorities 326 France  67, 70 Frankfurt, Harry Gordon  123, 134–135, 138 Freedom –– –– –– –– –– –– –– –– –– –– –– –– –– ––

of action  123, 130, 364, 365, 367–373 of assembly  174, 175, 182–184 of association  174, 175, 182–184 from censorship  174, 175, 181–182 of conscience  237, 238, 250 of expression  174, 175, 178–182, 185–192 of information  174, 177–179, 181, 185, 186, 190, 192 of others  203, 211 of the press (media)  181 of religion  232–238, 245–251 of religious belief   236 of spirituality  233, 246 of thoughts  174, 175, 179, 185 of will  123, 130, 134

Free will  35, 36, 38, 67, 73–75 French Declaration of the Rights of Man and Citizens of 1789  57, 332, 333

403 Index

G

I

Generality  2, 9–10, 82, 94, 100, 114–116 Geneva Refugee Convention  306, 307 German Basic Law See Constitution, of Germany Germany  67, 218, 220, 221, 282, 290, 300, 322, 323, 335, 336 Ghandi, Mohandas Karamchand “Mahatma,” 70 God  25, 26, 33–39, 41, 45, 48, 50–53, 61, 62, 72, 73, 76, 216, 218–220, 236, 237, 244, 245, 248, 254, 262, 281 Goffman, Erving  159, 165, 166, 198, 203, 205–209 Gosepath, Stefan.  355 Group-rights 326 Grundgesetz See Constitution, of Germany Guilt  101, 107, 110–113, 217, 226

ICCPR See International Covenant on Civil and Political Rights ICESCR See International Covenant on Economic, Social and Cultural Rights ICPPR 256 Illiberal state  338 Inalienability  10, 52 Individualism  44, 46–48, 50, 54, 57 Individuality  2, 9–10 Infinite regress  25–26, 39, 40 International Covenant on Civil and Political Rights (ICCPR)  66, 76, 142, 145, 147, 164, 165, 170, 171, 202, 299, 316, 325 International Covenant on Economic, Social, and Cultural Rights (ICESCR)  66, 76–77, 270, 278, 290, 316 Internet  200, 209 Ireland v. UK case  141, 152–154 Irrevocability 52 Islam  33–35, 234, 236, 237, 239

H Habeas corpus rights  158, 160–162, 171 Habermas, Jürgen  56, 246 Hate speech  176, 177, 191–193 Health care system  270, 271, 289 Hedonism  24, 27 Hennette-Vauchez, Stephanie  70 Hermeneutic circle  2, 5–6, 20 Herzog, Roman  233 Heteronomic approach (to human dignity)  67, 72, 73 Hilgendorf, Eric  67, 72, 73 Hitler, Adolf  225 Hobbes, Thomas  44, 47–50, 54, 55 Home  198, 202, 203, 206, 213 Hospitalization 168 Howard, Rhoda E.  326–327 Human  2–4, 7–12, 15, 18, 19 Human beings  108, 114, 117–118 –– non-personal  117, 118

Human dignity  34, 35, 66–77, 100–119, 122–138, 330–333, 336, 337, 340, 342 Human rights  2–21, 24, 26–28, 30, 31, 34–36, 40, 41 –– collective  315, 324–328 –– core area  364–367 –– liberal  270, 273, 274, 279, 289, 291, 292, 315, 324, 327 –– margin area  364, 365 –– social  270–292, 315, 324 –– yard  364, 367

Hume, David  25, 37, 319, 321 Hume’s Law  25, 37–38

J James, William  243 Judaism  236, 237, 239

K Kant, Immanuel  32, 72, 81, 88, 123, 133–134, 138, 216, 219, 273, 285, 289, 301, 302 Knox, John  281

L Labor  270–272, 275, 277, 281–283, 292 Labor theory of property  319 Landgericht Frankfurt  381 LAO-TSE 244 Legal rights  11, 12, 14 Legal system  366, 378–380 Legal theory  378, 379 Liberty  158, 160, 161, 330–346 Liberty principle  46, 59, 60 Locke, John  45, 50–55, 57, 314, 318–321 Luhmann, Niklas  203 Luther, Martin  281 Łuków, Pawel, 70

404 Index

M Maclure, Jocelyn  237 Magna Charta Libertatum  334 Maintenance of the authority and impartiality of the judiciary  189 Manetti, Gianozzo  67, 72 Manipulation  174, 175, 178–179, 183, 186 Maróth, Miklós  35 Marriage  199, 202, 207, 209, 213 Marsilius of Padua  47 MaxiMin-Principle  46, 58–59 Meaning of life  24, 25, 32, 38–40, 237 Member of the human family  82, 84, 86 Mental pain  140, 147, 149 Methodological individualism  26, 40–41 Mill, John Stuart  24, 27, 30, 336 Moral dilemma  366, 377, 379–381 Morality  3, 11, 12, 14, 24, 25, 27, 32, 35, 36, 236–238 Moral system  379, 380 Moral theory  24–25, 27, 31 Mortal fear  254, 264–265

N Narrative identity  228 National security  186–187 Naturalistic fallacy  25, 37, 40, 41, 45, 52 Natural state  44, 45, 48–51, 54, 55, 57, 60, 62 Nature  45, 48, 52, 61 Necessity in a democratic society  192–195, 211, 213 Neurosis  101, 113 Norm  123, 133, 138 Normative individualism  26, 41 Nussbaum, Martha  25, 36, 37, 237

O Obligations  123, 124, 126, 129, 132–138 Occupation theory of property  319 Omission  273, 274, 284–286, 289, 291, 366, 377, 381 Ontology  240, 259 Opinion  174, 179–182, 185, 187, 189–195 Orbán, Viktor  338 Original position  44, 46, 48, 57–59

P Performative contradiction  176–177, 191–192, 195

Person  25–30, 35, 37, 40, 41, 80–86, 91–94, 97, 100–119, 122, 123, 125–134, 136, 137 Personal identity  100–102, 104, 106, 112 –– See also Personhood

Personality  86, 225, 227–229 Personhood  81–83, 89–92, 97, 100–119, 122–131, 136, 137, 177, 186, 192, 222, 226–229, 232, 234, 238–246, 248, 254–261, 264, 266, 270, 277, 280, 315, 321, 328 Petitio principia fallacy  262 Philosophy 382 –– analysis  3, 5, 6, 14, 15, 18–20 –– naturalistic  3, 15

Physical pain  140 Pico Della Mirandola, Giovanni  67, 73 Plato  314, 318 Policy Objectives  270, 290 Pope Francis  147 Post-traumatic stress disorder  101, 106–108 Practical concordance  364, 365, 367, 372, 382 Presumption of equality thesis  350, 356 Prevention of disorder or crime  187, 203, 211 Price  81, 87–91 Principles 349–361 Prisonization 168 Prison village  169, 170 Privacy  198–214, 218 Private life  198, 200–202, 206–207, 209, 211 Process of balancing  310, 331, 339, 340, 342–344, 346 Property  2, 6–8, 314–328 –– in nuclear power plants  322, 323

Proportionality  331, 344–346 Protection of health  189, 203, 211, 212 Protection of morals  211, 213, 214 Protection scope  2, 7, 8, 18, 123, 129–131, 176, 177, 179, 183, 185, 187, 188, 190, 191, 193, 194 Proto-person  108–110, 116, 122, 125 Psychical displacement  113 Public safety  186, 203, 211, 213 Pufendorf, Samuel  216, 219

Q Quaternio terminorum fallacy  320

405 Index

R Rawls, John  44, 46, 48, 57–60, 287 Reformation 281 –– age of   216, 221

Refoulement ban  297, 307–309 Relative value –– –– –– ––

absolute  81, 82, 88–92 extrinsic  81, 88, 91, 92 intrinsic  81, 88, 89, 91, 92 relative  81, 88, 89, 91

–– –– –– –– –– –– –– –– –– –– –– –– ––

absolute 10 analytic  3, 15 to freedom of movement  158–171 and freedoms of others  203, 211 general structure  122, 125, 138 to global free movement  296, 299–303 to liberty  158, 160–162 to marry  352, 359, 360 of others  185, 187 positive  12, 13 to social security  275 subjective  2, 6, 7 super-positive  3, 11–13

Religion  50, 52, 53 Religious Dualism  232, 240, 251 Repentance  111, 112 Reputation 188 Restriction clauses  176, 177, 184–195, 210, 211 Riedesser, Peter  107 Right  122–133, 136–138, 270–292, 296–310, 330–333, 335–343

Right to Informational Self-Determination 20 Right to Life  253–267 Ritual practice  238 Robespierre, Maximilien de  256 Role-identity  198, 199, 201, 203, 205 Role-self 205 Romanticism 219–220 Rootedness  200, 201, 209 Rousseau, Jean Jacques  45, 54–57, 60 Rules  330, 337–342 Rushd, Ibn  25, 33

S Sacral  232, 239, 240, 242–245 Schirach, Ferdinand von  30 Self  203, 205 Self-alienation  198, 204–206 Shame  101, 104, 107, 110–113, 135–137, 217, 222–227

Smuts, Jan Christiaan  68–70, 86 Social contract  44–62 Social institutions  271–274, 276–278, 283, 284, 289, 290, 292 Social integration  200 Sortal 83 South Africa  68 Spaemann, Rober  35 Spirituality  232, 233, 245, 247–251 Statutory reservation  330, 334 Stoa  25, 33, 39, 87 Subsistence minimum  270, 271, 274, 277–282, 286–289 Substantive due process  333, 334 Suicide  101, 111–113 Super-positivity  3, 11–13, 27 Supreme Court of Israel  381

T Taylor, Charles  237 Telecommunication  200, 209 Territorial integrity  186 Territorial sovereignty  296, 301, 303 Tertullianus Florens, Quintus Septimus 4 Thomasius, Christian  216 Thought experiment  3, 17, 102, 115, 119 Tillich, Paul  101, 113 Torture  140–144, 151–154 Total depravity  281 Total institutions  159, 160, 165–170 Transcendental analysis  3, 17 Transgender people  352 Treatment –– cruel  140–145, 152–154 –– degrading  140–147, 151–154 –– inhuman  140–147, 151–155

Treaty of Westphalia  218 Trolley problem  28–30 Tugendhat, Ernst.  355

U UDHR See Universal Declaration of Human Rights Unavailability  3, 10 UN Charter See Charter of the United Nations Unconditional basic income  272, 282–283 UN Convention Against Torture  143, 144 UNESCO  66, 70, 74 UN Human Rights Committee  256

406 Index

Universal Declaration of Human Rights (UDHR)  2, 9–11, 21, 66, 70, 140, 142, 144, 147, 270, 275, 278–280, 290, 296, 298, 299, 316, 335, 351–353 Universality  3, 11, 16 Universalization 287 Urmson, James Opie  84 US Supreme Court  202, 334, 375 Utilitarianis 24–41 Utilitarianism  272, 284–285

V Vaccination  141, 189 Vagueness  15, 16, 18–19 Value  122–124, 126, 127, 130, 133–138 –– judgment  80, 81, 83–87, 93, 97 –– of life  254, 260

Vašák, Karel  315, 324 Veil of ignorance  46, 59, 287–288 Verification  105, 113–114 Verwaltungsgericht Neustadt  71

Virginia Bill of Rights  75, 256 Volonté general  45, 56 Von Humboldt, Wilhelm  336 Von Wright, Georg Henrik  80, 84

W Waldron, Jeremy  72, 73, 125, 358 Warren, Samuel D.  202 Weber, Max.  232, 246, 272, 281 Welfare state  271 Williams, Bernard.  379 Wolff, Christian  216, 219 Worldview –– profane  232, 242 –– sacral  232, 242–243

Worship  232, 238, 249 Worth  66, 68, 70, 71, 74

Z Zwingli, Huldrych  281